Opinion
CR. NO. 2:09-381 WBS
12-31-2015
UNITED STATES OF AMERICA, Plaintiff, v. LUCIANO MERCADO, Defendant.
MEMORANDUM AND ORDER RE: MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)
Before the court is defendant Luciano Mercado's Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2). (Docket No. 155.) For the reasons explained below, defendant does not qualify for a sentence reduction, and the court must therefore deny the motion.
I. Background
Defendant and his brother and co-defendant, Sergio Mercado, each pleaded guilty without a plea agreement to Count One and Count Two of an Indictment that charged each of them with (1) conspiracy to distribute over 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), and (2) possession with intent to distribute over 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). (Docket Nos. 1, 106, 110.) Judge Garcia, the then-sentencing judge, held a sentencing hearing on May 6, 2011. (Docket No. 101 ("Hearing").)
Under the 2010 Sentencing Guidelines ("U.S.S.G.") Manual that was in effect at the time, the court sentenced Sergio Mercado at the low end of his assessed guideline range of 135 to 168 months and imposed a term of 135 months imprisonment. (Hearing at 6-9.) With regard to defendant, the court assessed a guideline range of 235 to 293 months based on defendant's managerial role in the conspiracy. (Hearing at 11-14.)
The court then considered the 18 U.S.C. § 3553 factors, particularly § 3553(a)(6), which instructs the court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Observing that defendant and his brother had similar criminal backgrounds and were convicted of essentially the same offenses, Judge Garcia thus varied down defendant's sentence to 168 months, the high end of the guideline range applicable to Sergio Mercado.
In 2014, the U.S. Sentencing Commission issued Amendment 782 to the Guidelines Manual, reducing guidelines ranges for certain drug offenses by two offense levels. The Commission further determined that Amendment 782 should have retroactive effect for those currently serving terms of imprisonment. See U.S.S.G. App. C, Amend. 788 at 87. The undersigned subsequently granted Sergio Mercado's stipulated motion to reduce his sentence to 108 months based on his amended guideline range of 108 to 135 months pursuant to Amendment 782. (Docket No. 157.)
Although Sergio Mercado would ordinarily be subject to a 10-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A)(viii), Judge Garcia found that Sergio met the safety valve criteria under U.S.S.G. § 5C1.2. (Hearing at 7.)
The current version of U.S.S.G. § 1B1.10(b)(2)(A) provides that the court may not reduce a defendant's term of imprisonment to a term that is less than the minimum of the amended guideline range. U.S.S.G. § 1B1.10(b)(2)(A) (2015). Here, defendant's original guideline range was 235 to 293 months and his amended guideline range under Amendment 782 is 188 to 235 months. However, because defendant was sentenced to a term 168 months, which is below the low end of his amended guideline range, § 1B1.10(b)(2)(A) bars defendant's eligibility for a sentence reduction under § 3582(c)(2).
Defendant contends that the current version of § 1B1.10(b)(2)(A) violates the Ex Post Facto Clause of the United States Constitution because the version that was in effect when defendant committed his criminal acts gave the court discretion to reduce his sentence below the low end of an amended guideline range pursuant to a Sentencing Guidelines amendment. The Indictment here was based on defendant's criminal conduct taking place in July 2009. Defendant thus requests that the court apply the 2009 version of § 1B1.10(b)(2)(A) in effect at that time and reduce his sentence to 135 months, the high end of the amended guideline range applicable to Sergio Mercado, which defendant states is comparable to the sentence originally imposed.
II. Discussion
In considering a motion to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2), the court must conduct a two-step inquiry. Dillon v. United States, 560 U.S. 817, 826-27 (2010). "A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a)." Id. at 826. Defendant here concedes that reducing his sentence under Amendment 782 would be inconsistent with the applicable policy statement in the current version of § 1B1.10. This policy statement prohibits a district court from reducing a defendant's sentence under § 3582(c)(2) to a term that is less than the minimum of an amended guideline range. See U.S.S.G. § 1B1.10(b)(2)(A) (2015); United States v. Davis, 739 F.3d 1222 (9th Cir. 2014) (affirming the district court's holding that § 1B1.10(b) precluded a sentence reduction under § 3582(c)(2) because the defendant had already received a sentence below the minimum of the amended guidelines range).
Section 1B1.10 carves out an exception to this prohibition for defendants who provide "substantial assistance to authorities," U.S.S.G. § 1B1.10(b)(2)(B), but this exception does not apply to defendant.
The current version of the policy statement was originally promulgated in Amendment 759 on June 30, 2011--after defendant was sentenced--and became effective on November 1, 2011. See U.S.S.G. app. C, amend. 759 (2011). Earlier versions of the policy statement, including the 2009 version, did not contain the current prohibition. See U.S.S.G. § 1B1.10(b)(2)(A) cmt. n. 3 (2009) ("If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subsection (b)(1) may be appropriate.").
A. Ex Post Facto Clause
The Ninth Circuit has created a two-step test to determine if there has been a violation of the Ex Post Facto Clause: (1) retroactive application of a criminal law that (2) disadvantages the defendant. United States v. Johns, 5 F.3d 1267, 1270 (9th Cir. 1993). For a Sentencing Guidelines amendment to violate the Ex Post Facto Clause, the amendment must present a "sufficient risk of increasing the measure of punishment attached to the covered crimes." United States v. Waters, 771 F.3d 679, 680 (9th Cir. 2014) (per curiam) (citations omitted).
In Waters, the Ninth Circuit held that a district court's application of the post-Amendment 759 version of § 1B1.10 did not violate the Ex Post Facto Clause even though its application made the defendant ineligible for a sentence reduction under § 3582(c)(2). Id. at 681 (citation omitted). The Ninth Circuit held that "so long as the effect of post-conduct amendments to the guidelines is not to increase a defendant's punishment beyond what it would have been without those amendments, there is no ex post facto problem." Id. (citation and alterations omitted).
Like defendant here, Waters had received a generous downward departure at his initial sentencing and later moved to reduce his sentence under § 3582(c)(2). Id. at 680. Similar to defendant here, Waters argued that the court should have applied the version of § 1B1.10 as it existed at the time of his offense on the basis that Amendment 759 violated the Ex Post Facto Clause by restricting the district court's discretion to lower a defendant's sentence below the amended Guidelines. Id. The Ninth Circuit rejected this argument, holding that applying the post-Amendment 759 version of § 1B1.10 may have prevented Waters from benefitting from the recent amendments reducing the drug offense penalties, but "because application of the amendments would not increase the punishment for his crime over what was imposed when he was sentenced, there is no ex post facto problem." Id. at 681.
Defendant here advances essentially the same argument as in Waters, but argues that Waters "fail[ed] to apply the correct standard for ex post facto violations, which has long recognized that the loss of opportunity for release and risk of prolonged imprisonment can form the basis for such a violation." (Def.'s Mot. at 15-16.) This argument is unavailing, as the Supreme Court and Ninth Circuit have noted: "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage,' nor . . . on whether an amendment affects a prisoner's opportunity to take advantage of provisions for early release." Moor v. Palmer, 603 F.3d 658, 663 (9th Cir. 2010) (citing Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995)).
Defendant cites readily distinguishable cases in support of his argument. E.g., Weaver v. Graham, 450 U.S. 24, 25-27 (1981) (analyzing state law amendment altering availability of credits for good behavior); Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) (analyzing a retroactive Guidelines amendment that increased the defendant's base offense level); Flemming v. Oregon Bd. of Parole, 998 F.2d 721 (9th Cir. 1993) (analyzing amendment to state parole regulation). --------
As defendant acknowledges himself, Waters is "[t]he single Ninth Circuit case on point." (Def.'s Mot. at 15-16.) But defendant's contention that Waters failed to apply the correct ex post facto standard lacks merit. "A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue." Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). "Binding authority must be followed unless and until overruled by a body competent to do so. . . . Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court." Id. at 1170-71.
Defendant's contention that the current version of § 1B1.10(b)(2)(A) violates the Ex Post Facto Clause because it effectively prolongs the term of his imprisonment by denying the opportunity for early release is also unavailing. There has been no such prolonging here: defendant retains the benefit of his original variance that resulted in a 168-month sentence. As in Waters, the current version of § 1B1.10(b)(2)(A) thus does not represent an increase in punishment, as required for an Ex Post Facto Clause violation. See 771 F.3d at 681.
B. No Reduction Under the 2009 Guidelines Manual
Both the 2009 and 2015 Guidelines Manuals require a court to use the Manual in effect on the date that a defendant is sentenced, unless doing so would violate the Ex Post Facto Clause--in which case the court is to use the Manual in effect on the date that the offense of conviction was committed. See U.S.S.G. § 1B1.11 (2009 & 2015). The commentary to § 1B1.11 provides that "if an earlier edition of the Guidelines Manual is used, it is to be used in its entirety, except that subsequent clarifying amendments are to be considered." Id. cmt. n. 1 (2009 & 2015). The court "may consider a subsequent amendment of the Sentencing Guidelines only if that amendment is a clarification of existing law rather than a substantive change in the law." United States v. Christensen, 598 F.3d 1201, 1204 (9th Cir. 2010) (citation and alterations omitted). Defendant here acknowledges that the current version of § 1B1.10(b)(2)(A) "alters the substantive formula used to calculate [defendant's] potential sentence under 18 U.S.C. § 3582." (Def.'s Mot. at 11.)
Thus, if the court were to use the 2009 Manual, it would be precluded from considering Amendment 782 and defendant would have no grounds upon which to base this motion. See United States v. Warren, 980 F.2d 1300, 1304-06 (9th Cir. 1992) (holding that courts may not apply one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual; courts must determine sentences under one set of Guidelines rather than applying the Guidelines piecemeal); United States v. Shino, No. 1:03-CR-05453-LJO, 2015 WL 1496968, at *3 (E.D. Cal. Mar. 31, 2015) ("The Court cannot allow Defendant to have his cake and eat it too by picking and choosing the pieces of the current Sentencing Guidelines that he would like to apply to his sentence.").
Accordingly, the court is unable to grant defendant a sentence modification pursuant to Amendment 782 consistent with § 1B1.10.
IT IS THEREFORE ORDERED that defendant's motion for reduction of sentence pursuant to § 3582(c)(2) be, and the same hereby is, DENIED. Dated: December 31, 2015
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE