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United States v. Minjarez

United States District Court, E.D. Louisiana

March 20, 2017

UNITED STATES
v.
MANUEL OMAR MINJAREZ

         SECTION “B” (3)

          ORDER AND REASONS

         I. NATURE OF THE MOTION AND RELIEF SOUGHT

         Before 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.

         IT IS ORDERED that the motion (Rec. Doc. 94) be DENIED.

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Prior 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[1]. 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 at 1.

         In this 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.

         III. LAW & ANALYSIS

         Because 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).[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. § 3582(c)(2).

         1. Retroactivity of Amendment 794

         The 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 sentencing.”).

         Courts 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.

         However, 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.

         2. Amendment 794 would have had no effect on ...


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