United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Stewart United States District Judge.
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.
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.
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
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).” 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. Freeman was subsequently modified
by Hughes v. United States.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).
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.
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.
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.”“[A] motion for reconsideration is
appropriate where the court has misapprehended the facts, a
party's position, or the controlling
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 §
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.
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). Now, a below-guideline
sentence may only be imposed “where the defendant
originally received a departure for providing substantial
assistance to the government.” Defendant did not receive a
departure for providing substantial assistance. Therefore,
the Court lacks the authority to further reduce
points to two recent Supreme Court decisions to further
support his request. Defendant first cites to Dean v.
United States.Dean held that courts can
consider the mandatory minimum sentence required by §
924(c) when calculating the appropriate sentence for the
predicate offense. Nothing in Dean speaks to the
issue before the Court. As stated, the Court ...