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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 13CR983-LAB
Plaintiff,

ORDER DENYING MOTIONS FOR
REDUCTION OF SENTENCE
[Doc. Nos. 46 & 48]

vs
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GABRIEL RUIZ-GERARDO,
Defendant.

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In 2013, this Court sentenced Gabriel Ruiz-Gerardo to 70 months in custody after he

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pled guilty to possessing11.89 kilograms of actual methamphetamine with the intent to

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distribute it. Ruiz-Gerardo has now filed a motion to vacate his sentence under 22 U.S.C.

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§ 2255 [Doc. 46] and a second motion to reduce his sentence under 18 U.S.C. § 3582

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[Doc. 48].

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Beginning with the § 2255 motion, it comes more than a year after Ruiz-Gerardo’s

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sentencing and is therefore late. See 22 U.S.C. § 2255(f). Ruiz-Gerrardo doesn’t argue that

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any exception to the one year time bar applies, and none is apparent. Besides, Ruiz-Gerardo

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waived his right to collaterally attack his sentence if the Court followed the plea agreement

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he made with the Government, which the Court did. No relief is available under § 2255.

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As far as Ruiz-Gerardo’s alternative motion to reduce his sentence under § 3582(c),

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he is ineligible. Section 3582(c)(2) authorizes a court discretion to reduce a defendant’s

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original sentence when the sentence is “based on” a guideline range that has subsequently
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13CR983

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been lowered by an amendment to the Guidelines. After Ruiz-Gerardo was sentenced, the

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U.S. Sentencing Commission approved Amendment 782 to the Guidelines, which lowered

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the sentencing range for most drug offenses by 2 levels. The Commission also voted to

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make the changes retroactive. But Amendment 782 doesn’t apply to Ruiz-Gerardo’s original

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sentence since he admitted that he possessed for distribution more than 4.5 kilograms of

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actual methamphetamine and Amendment 782 did not lower the Guidelines for such large

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amounts of drugs.

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In addition, in imposing the original sentence the Court granted a 4-level Fast Track

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departure and a 17-month variance from the low end of Ruiz-Gerardo’s applicable Guideline

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range. When those concessions are backed out of his amended Guideline range, as they

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must be, see United States v. Aragon-Rodriguez, 624 Fed. Appx. 542, *3, 2015 U.S. App.

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LEXIS 21377 (9th Cir. Nov. 19, 2015) (the only Chapter Five departure that counts in

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calculating a defendant’s amended Guideline range under § 3582(c) is for substantial

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assistance), the low end of the amended Guideline range remains higher than the sentence

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that the Court originally imposed. A court may not reduce a sentence under 3582(c)(2)

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unless the low end of the amended Guideline range is less than the sentence originally

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imposed. Here it’s not.

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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

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HONORABLE LARRY ALAN BURNS
United States District Judge

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13CR983