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United States v. Herben

United States District Court, D. Utah

September 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHANNES EUGENE HERBEN, Defendant.

          MEMORANDUM DECISION AND ORDER

          Ted Stewart United States District Judge.

         This matter is before the Court on Defendant's Motion to Reconsider, Motion to Appoint Counsel, and Motion for Extension of Time. For the reasons discussed below, the Court will deny the Motion to Reconsider and Motion to Appoint Counsel. The Court further finds that the Motion for Extension of Time is moot because Petitioner's Motion to Reconsider was timely filed.

         I. BACKGROUND

         Defendant was charged by Felony Information with possession of methamphetamine with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). Defendant pleaded guilty to both counts on March 31, 2010, pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Under that agreement, the parties agreed to a sentence of 156 months.

         The Presentence Report prepared in this matter noted, as to Count One, a total offense level of 25 with a criminal history category VI, resulting in a guide range of 110 to 137 months. Count Two carried a minimum mandatory sentence of five years to run consecutive, resulting in an overall guideline range of 170 to 197 months. On July 6, 2010, the Court formally accepted the parties' agreement and imposed a sentence of 156 months.

         In 2014, Amendment 782 to the Sentencing Guidelines reduced “by two levels many of the base offense levels for drug offenses assigned by the drug-quantity table at USSG § 2D1.1(c).”[1] Based upon that amendment, Defendant sought a sentence reduction pursuant to 18 U.S.C. § 3582(c). The Court denied Defendant's initial request on December 3, 2015, based on Freeman v. United States.[2] Freeman was subsequently modified by Hughes v. United States.[3]In Hughes, the Supreme Court clarified that defendants who, like Defendant here, enter into agreements under Rule 11(c)(1)(C) generally remain eligible for relief under § 3582(c)(2).

         Relying on Hughes, Defendant again requested a sentence reduction. Defendant requested a sentence of 92 months, which represented the amended guideline range for Count One. In response, the government agreed that Defendant was eligible for relief in light of Hughes. However, the government noted that Defendant's proposed sentence of 92 months failed to take into account the required 60 month consecutive sentence for Count Two. The government proposed a sentence of 140 months, representing an 8% reduction below the low-end of the new guideline range, which was similar to the reduction provided by the original agreement.

         On August 9, 2018, the Court granted Defendant's request for a sentence reduction. The Court reduced Defendant's sentence to 152 months. This sentence represents the low-end of the newly calculated guideline range for Count One, along with the 60 month consecutive sentence for Count Two.

         II. DISCUSSION

         Defendant seeks reconsideration of the Court's sentence reduction. “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”[4]“[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.”[5]

         Defendant argues that the Court erred in failing to further reduce his sentence. However, the Court lacks the authority to reduce his sentence below 152 months. United States Sentencing Guideline § 1B1.10(b)(2)(A) provides that, except in circumstances not present here, the Court shall not reduce the defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) to a term that is less than the minimum of the amended guideline range determined under Section 1B1.10(b)(1). Section 1B1.10 is binding on courts in § 3582(c)(2) proceedings.[6]

         Here, the amended guideline range for Count One is 92 to 115 months. Count Two requires a sentence of 60 months to run consecutive. As a result, under § 1B1.10(b)(2)(A), the Court cannot reduce Defendant's term of imprisonment to less than 152 months, which represents the minimum of the amended guideline range for Count One (92 months), plus the consecutive term of 60 months for Count Two.

         The Court recognizes that the government recommended a lesser sentence to allow for a reduction similar to that contained in the plea agreement. Prior versions of the Sentencing Guidelines contained an exception that allowed, in some circumstances, courts to reduce an amended sentence by a comparable number of months if a defendant's original sentence was below the then-applicable guideline range. However, Amendment 759 significantly narrowed the exception contained in §1B1.10(b)(2)(B).[7] Now, a below-guideline sentence may only be imposed “where the defendant originally received a departure for providing substantial assistance to the government.”[8] Defendant did not receive a departure for providing substantial assistance. Therefore, the Court lacks the authority to further reduce Defendant's sentence.[9]

         Defendant points to two recent Supreme Court decisions to further support his request. Defendant first cites to Dean v. United States.[10]Dean held that courts can consider the mandatory minimum sentence required by § 924(c) when calculating the appropriate sentence for the predicate offense.[11] Nothing in Dean speaks to the issue before the Court. As stated, the Court ...


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