Ruiz-Gerardo v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Larry Alan Burns on 8/14/2017.(All non-registered users served via U.S. Mail Service)(jjg)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 CASE NO. 13CR983-LAB Plaintiff, ORDER DENYING MOTIONS FOR REDUCTION OF SENTENCE [Doc. Nos. 46 & 48] vs 13 GABRIEL RUIZ-GERARDO, Defendant. 14 15 16 In 2013, this Court sentenced Gabriel Ruiz-Gerardo to 70 months in custody after he 17 pled guilty to possessing11.89 kilograms of actual methamphetamine with the intent to 18 distribute it. Ruiz-Gerardo has now filed a motion to vacate his sentence under 22 U.S.C. 19 § 2255 [Doc. 46] and a second motion to reduce his sentence under 18 U.S.C. § 3582 20 [Doc. 48]. 21 Beginning with the § 2255 motion, it comes more than a year after Ruiz-Gerardo’s 22 sentencing and is therefore late. See 22 U.S.C. § 2255(f). Ruiz-Gerrardo doesn’t argue that 23 any exception to the one year time bar applies, and none is apparent. Besides, Ruiz-Gerardo 24 waived his right to collaterally attack his sentence if the Court followed the plea agreement 25 he made with the Government, which the Court did. No relief is available under § 2255. 26 As far as Ruiz-Gerardo’s alternative motion to reduce his sentence under § 3582(c), 27 he is ineligible. Section 3582(c)(2) authorizes a court discretion to reduce a defendant’s 28 original sentence when the sentence is “based on” a guideline range that has subsequently -1- 13CR983 1 been lowered by an amendment to the Guidelines. After Ruiz-Gerardo was sentenced, the 2 U.S. Sentencing Commission approved Amendment 782 to the Guidelines, which lowered 3 the sentencing range for most drug offenses by 2 levels. The Commission also voted to 4 make the changes retroactive. But Amendment 782 doesn’t apply to Ruiz-Gerardo’s original 5 sentence since he admitted that he possessed for distribution more than 4.5 kilograms of 6 actual methamphetamine and Amendment 782 did not lower the Guidelines for such large 7 amounts of drugs. 8 In addition, in imposing the original sentence the Court granted a 4-level Fast Track 9 departure and a 17-month variance from the low end of Ruiz-Gerardo’s applicable Guideline 10 range. When those concessions are backed out of his amended Guideline range, as they 11 must be, see United States v. Aragon-Rodriguez, 624 Fed. Appx. 542, *3, 2015 U.S. App. 12 LEXIS 21377 (9th Cir. Nov. 19, 2015) (the only Chapter Five departure that counts in 13 calculating a defendant’s amended Guideline range under § 3582(c) is for substantial 14 assistance), the low end of the amended Guideline range remains higher than the sentence 15 that the Court originally imposed. A court may not reduce a sentence under 3582(c)(2) 16 unless the low end of the amended Guideline range is less than the sentence originally 17 imposed. Here it’s not. 18 19 20 21 In sum, Ruiz-Gerardo is not eligible to have his sentence reduced under either code section he relies on. His motion is DENIED. IT IS SO ORDERED. DATED: August 14, 2017 22 23 HONORABLE LARRY ALAN BURNS United States District Judge 24 25 26 27 28 -2- 13CR983

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?