United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
WADDOUPS UNITED STATES DISTRICT JUDGE.
25, 2019, the court reduced Mr. Nolasco’s sentence from
180 months down to 147 months pursuant to 18 U.S.C. §
3582(c)(2) and U.S.S.G. Amendment 782. Mr. Nolasco filed a
Motion to Reconsider on August 15, 2019. He requests leave to
file an amended motion for a sentence reduction, so the
entire matter may be re-briefed and redecided. He contends
(1) the court should have appointed the Federal
Defender’s Office to handle the case; (2) Defense
counsel was unaware of the case until August 13, 2019; (3)
Mr. Nolasco had no opportunity to respond to the United
States’ brief; and (4) the court’s decision was
not governed by the factors stated in 18 U.S.C. §
October 7, 2014, then Chief Judge David Nuffer issued General
Order 14-005. The General Order, in part, states:
[T]he Office of the Federal Public Defender for the District
of Utah is appointed to represent any defendant
previously determined to have been entitled to appointment of
counsel or found indigent by the Court (i) whose name appears
on the lists of defendants potentially qualifying for a
reduction of sentence . . . or (ii) who files a pro se motion
for relief seeking a sentence reduction under the retroactive
application of U.S.S.G. Amendment 782.
Id. at 1 (emphasis added). The General Order further
states, “The Federal Public Defender’s Office
shall represent those defendants with respect to any
possible motions for reduction of sentence, ” and such
appointment is not terminated until the district court rules
or the appellate process is completed, “unless
otherwise ordered by the Court.” Id. (emphasis
Nolasco was previously determined to be eligible for the
appointment of counsel. He was represented by the Federal
Defender’s Office during his original sentencing. He
was identified as being potentially eligible for a sentence
reduction, and he filed a pro se motion seeking such a
reduction. He therefore met all requirements under the
General Order for representation by the Federal
Defender’s Office. Appointment occurred pursuant to
that General Order and no separate appointment was necessary.
NOTIFICATION OF THESE PROCEEDINGS AND OPPORTUNITY TO
stated above, counsel for Mr. Nolasco contends he did not
become aware of these proceedings until August 13, 2019. A
review of the docket receipt information, however, shows that
three individuals from the Federal Defender’s Office
were notified electronically of Mr. Nolasco’s Motion to
Modify Sentence on May 23, 2019, at or about 11:06 a.m.
See Display Receipt re Motion to Modify Sentence
(ECF No. 95).
correspondence from Mr. Nolasco was docketed on June 13, 2019
(ECF No. 96). A Notice of Attorney Appearance and an amended
Notice of Attorney Appearance were filed on June 26, 2019 by
the United States (ECF Nos. 97, 98). The United States then
filed its Response to Mr. Nolasco’s Motion on July 8,
2019 (ECF No. 99), wherein the United States acknowledged Mr.
Nolasco was eligible for a sentence reduction. And the
Federal Defender’s Office received electronic
notification of each event on the day they were docketed.
Notice of the proceedings therefore occurred on five
occasions between May 23, 2019 and July 8, 2019.
Consequently, while present counsel may not have learned
about the proceedings until August 13, 2019, such lack of
information was not due to the Federal Defender’s
Office failing to receive notice of these proceedings.
the Federal Defender’s Office was on notice of these
proceedings, Mr. Nolasco, through counsel, had the
opportunity to file a reply to the United States’
brief. No opportunity was taken, and the court did not bear
the burden of asking whether the Federal Defender’s
Office intended to file a reply before it issued its ruling
on July 25, 2019.
SECTION 3553 FACTORS
Mr. Nolasco contends the factors under 18 U.S.C. § 3553
were not considered when the court determined a sentence of
147 months was appropriate. All factors were considered and
weighed as a necessary part of determining whether Mr.
Nolasco should receive any sentence reduction. Mr. Nolasco
committed a serious crime involving an intent to distribute
801.7 grams of actual methamphetamine. Letters of support for
Mr. Nolasco speak about him being a family man. The court has
no reason to doubt Mr. Nolasco’s care for his family.
That does not negate, however, that Mr. Nolasco disregarded
the harm other families would experience had he been able to
distribute 801.7 grams of methamphetamine. He committed a
Mr. Nolasco previously was convicted for possessing another
large quantity of drugs to sell. Less than seven months after
his release and while he was still on probation, Mr. Nolasco
was arrested for the present crime. His prior conviction and
imprisonment did not deter him from committing another
serious crime later. Due to the large quantity ...