United States District Court, E.D. Louisiana
ORDER AND REASONS
NATURE OF THE MOTION AND RELIEF SOUGHT
the Court is Defendant Manuel O. Minjarez's motion to
amend and modify sentence pursuant to 18 U.S.C. §
3582(c)(1). Rec. Doc. 94. Defendant requests that we
reconsider his sentence in light of Amendment 794 to the
United States Sentencing Guideline § 3B1.2 of a minor
role reduction. Rec. Doc. 94 at 1. He also requests the
appointment of counsel for this purpose. Id.
ORDERED that the motion (Rec. Doc. 94) be DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
to sentencing, a pre-sentence investigation report
(“PSR”) was filed into the record; it applied the
sentencing guidelines to make a sentencing recommendation.
Rec. Doc. 73. Defendant had 14 days to object to this report;
instead, he requested a Booker downward variance.
Rec. Docs. 74, 76. Defendant was sentenced on September 23,
2015, at which time this Court denied his request for a
downward variance. Rec. Doc. 84 at 21. He filed the instant
motion almost a year later on September 2, 2016. Rec. Doc. 94
motion, Defendant requests a review of his sentence in light
of Amendment 794 to U.S.S.G. § 3B1.2 and the decision of
the Ninth Circuit in United States v.
Quintero-Leyva, 825 F.3d 519 (9th Cir. 2016). Rec. Doc.
94 at 1. He also requests counsel. Id.
LAW & ANALYSIS
the Defendant requests a review of his sentence in light of
an amendment to the United States Sentencing Guidelines, the
instant motion must be construed as a motion under 18 U.S.C.
§ 3582(c)(2). See United States v. Camarillo,
No. 07-402, 2017 WL 117788, at *1-2 (E.D. La. Jan. 12, 2017)
(construing a motion seeking retroactive application of
Amendment 794 as a § 3582(c)(2) motion). Under §
3582(c)(2), a court is permitted to modify a sentence if the
defendant was sentenced “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o).” 18 U.S.C.
Retroactivity of Amendment 794
amendment in question, Amendment 794, modified the commentary
to U.S.S.G. § 3B1.2, entitled “Mitigating Role,
” and became effective on November 1, 2015. U.S.
Sentencing Guidelines Manual app. C, amend. 794, at 117
(Supp. Nov. 1, 2015). Because Defendant was sentenced on
September 23, 2015, Amendment 794 must apply retroactively in
order to lower the sentencing range on which his sentence was
based. Gomez-Valle, 828 F.3d at 330
(“Generally, sentencing and reviewing courts apply the
Guidelines Manual in effect at the date of
may modify a sentence with a 18 U.S.C. § 3582(c)(2)
motion only if the guideline range was lowered by an
amendment listed in U.S.S.G. § 1B1.10(d). U.S.
Sentencing Guidelines § 1B1.10(a)(1). If an amendment to
the United States Sentencing Guidelines is not listed in
§ 1B1.10(d), then such a reduction “is not
authorized under 18 U.S.C. § 3582(c)(2).”
Id. at § 1B1.10(a)(2). Amendment 794 is not
listed in U.S.S.G. § 1B1.10(d). As such, the Amendment
cannot be retroactively applied under § 3582(c)(2) to
Defendant, whose sentencing took place on September 23, 2015.
Rec. Doc. 84.
in United States v. Quintero-Leyva, cited by
Defendant, the Ninth Circuit held that Amendment 794 applies
retroactively. 825 F.3d 519, 522 (9th Cir. 2016). The Fifth
Circuit has not determined whether Amendment 794 is
retroactive. United States v. Gomez-Valle, 828 F.3d
324, 330 (5th Cir. 2016)(declining to resolve whether
Amendment 794 was retroactive because even if applied
retroactively, it would not apply to defendant's
sentence); United States v. Castro, 843 F.3d 608,
610 (5th Cir. 2016)(same). Nonetheless, this Court need not
resolve the issue of retroactivity because Defendant's
motion fails to satisfy the substantive requirements of an 18
U.S.C. § 3582(c)(2) motion.
Amendment 794 would have had no effect on ...