Ixtlilco-Hernandez v. United States of America

Filing 12

(FILED IN ERROR) ORDER. The Clerk of Court will deliver or serve a copy of the motion on the United States Attorney for the District of South Dakota. The USA for the District of South Dakota will file and serve an answer or responsive pleading to the petition, together with a legal brief or memorandum in support thereof, on or before January 4, 2013. Signed by US Magistrate Judge John E. Simko on 11/29/12. (DJP) Modified on 11/30/2012 (DJP).

FILED
UNITED STATES DISTRICT COURT

NOV 292012

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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UNITED STATES OF AMERICA,
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CR 07-40055-15
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Plaintiff,
* MEMORANDUM OPINION AND
* ORDER DENYING MOTION FOR
-vs*
REDUCED SENTENCE
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BRANYON DALE PIPPENGER,
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Defendant.

Pending before the Court is Defendant's pro se motion for a reduced sentence filed pursuant
to 18 U.S.C. § 3582(c)(2). For the following reasons, the motion will be denied.

On June 5, 2008, Defendant was convicted by a jury of conspiracy to distribute 50 grams or
more ofcocaine base ("crack cocaine"), in violation of21 U.S.C. §§ 841(a)(1) and 846. Following
his conviction, the Court granted Defendant's motion for new trial. He was again convicted by ajury
on May 28, 2009. Defendant was sentenced on September 8, 2009. His total offense level was 32.
With a criminal history category of I, Defendant's advisory guideline range was 121 to 151 months
imprisonment. The amount of drugs attributable to Defendant resulted in a statutory mandatory
minimum sentence of 120 months. The Court granted a variance to reach the mandatory minimum
and sentenced Defendant to 120 months. The Eighth Circuit affirmed his conviction and sentence.

See United States v. Pippenger, 409 Fed.Appx. 36 (8th Cir. 2010). Defendant's motion to vacate
his sentence under 28 U.S.C. § 2255 was denied by this Court on August 6,2012. (CIV 11-4094,
doc. 19.)

On August 3,2010, the Fair Sentencing Act ("FSA") was enacted, raising the amount of
cocaine base required for imposition of a mandatory minimum sentence. See Pub.L. No. 111-220,
124 Stat. 2372 (2010). The United States Supreme Court has held that the more lenient penalties

ofthe FSA apply to those offenders whose crimes occurred before the effective date ofthe FSA, but
who were sentenced after that date. Dorsey v. United States, 132 S.Ct. 2321 (2012). The FSA took
effect on August 3, 2010. Defendant was sentenced on September 8, 2009. The FSA does not apply
to him. The Sentencing Commission, however, amended the Sentencing Guidelines in order to
implement the FSA, and the Commission voted to give retroactive effect to the new Guidelines
which became effective on November 1, 2011. Since that date, the Court has been considering
motions for sentence reductions pursuant to 18 U.S.C. § 3582(c) based on the crack cocaine
guideline amendments ("Amendments").

Sentence reductions are permitted by 18 U.S.C. § 3582(c)(2) when the sentencing range for
the offense for which the defendant was sentenced has been lowered:
[J]n the case ofa defendant who has been sentenced to a term ofimprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(0) ... the court may reduce the term of
imprisonment, after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). The applicable policy statement is USSG §IBl.lO, which designates the
amendments to the Guidelines that may be applied retroactively. Section IB1.10 provides, in
relevant part, that a reduction in a defendant's term ofimprisonment is not consistent with this policy
statement and therefore is not authorized under 18 U .S.C. § 3582(c)(2) ifthe amendment "does not
have the effect of lowering the defendant's applicable guideline range." USSG § IB 1.1 O(a)(2)(B).

Because the Amendments may now be applied retroactively, see USSG § IBl.lO(c), if the
sentencing range for Defendant's offense has been lowered by the Amendments, the Court has
discretion under 18 U.S.C. § 3582(c )(2) to reduce Defendant's sentence. Under the new guidelines,
Defendant's total offense level is 28. With a criminal history category ofI, Defendant's advisory
guideline range is 78 to 97 months, which is lower than at his sentencing. But, again, Defendant is
subject to a 120-month statutory mandatory minimum. The Sentencing Guidelines provide that
"[w]here a statutorily required minimum sentence is greater than the maximum of the applicable

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guideline range, the statutorily required minimum sentence shall be the guideline sentence." USSG
§5G1.1 (b). Thus, when a case involves a statutory mandatory minimum sentence that exceeds the
applicable guideline range, the statutory sentence becomes the guideline sentence. See United States

v. Byers, 561 F.3d 825 (8th Cir. 2009) (holding that statutory minimum became the defendant's
guideline range); United States v. Jones, 523 F.3d 881, 882 (8th Cir.2008) (per curiam) (where a
statutory minimum is greater than the amended Guidelines range, the defendant is not entitled to a
sentence reduction); United States v. Johnson, 517 F.3d 1020, 1024 (8th Cir. 2008) (2007 crack
amendments not applicable to defendant whose statutory mandatory minimum exceeded guideline
range).

Defendant's advisory guideline range is changed by the Amendments, but the 120-month
statutory mandatory minimum exceeds his advisory guideline range and thus his guideline sentence
remains at 120 months after application of the new crack cocaine guidelines. Consequently, a
sentence reduction is not authorized under 18 U.S.C. § 3582(c)(2) because it is not consistent with
the Sentencing Commission's policy statement at USSG § 1B 1.1 O(a)(2)(B) excluding a reduction if
the crack amendment "does not have the effect of lowering the defendant's applicable guideline
range." Accordingly,
IT IS ORDERED that Defendant Branyon Dale Pippenger's motion for a reduced
sentence, doc. 1958, is denied.
Dated this

~ql1 day of1\o~, 2012.
BY THE COURT:

L wrence L. Piersol
nited States District Judge
ATTEST:

JOSEPH 1]~C~ERK
BY:

QJJ1~

(SEAL)

DEPUTY

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