Perez-Verdugo v. United States

• Court: District Court, S.D. California
• Decided: August 25, 2021
• Docket: 3:19-cv-01245
• Status: Unknown

Opinion

2 AUG 25 2021 3 CLERK. US. DISTRICT COURT _ SOUTHERN DISTRICT OF CALIFORNIA 4 □ BY DEPUTY 5 6 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 || ALBERTO PEREZ-VERDUGO, ) Case No.: 3:19-cv-01245-BEN D Movant, Related Case: 3:13-cr-00528-BEN-1 ) ORDER DENYING: ) (1) MOTION TO VACATE, SET UNITED STATES OF AMERICA, , 4 ASIDE, OR CORRECT 15 Respondent. ) SENTENCE PURSUANT TO 28 16 ) U.S.C. § 2255 AND (2) MOTION TO REDUCE HIS SENTENCE PURSUANT TO 18 18 ) U.S.C. § 3582(C)(2) 19 ) [Case No. 3:19-cev-01245-BEN: ECF 0 . ) No. 1] □ 2 ) [Related Case No. 3:13-cr-00528-BEN: 21 ) ECF Nos. 69, 72] 92 INTRODUCTION 23 Petitioner ALBERTO PEREZ-VERDUGO (“Petition”) proceeding pro se, filed a 24 ||(1) motion! to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 25 26 ||) In reviewing Movant’s motion, the Court is mindful that, “[a] document filed pro se 7 to be liberally construed ... and a pro se [pleading], however in artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 28 Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). -l|-

1 || (“Section 2255”), ECF No. 727; CV ECF No. 1, and (2) motion to reduce his sentence 2 pursuant to 18 U.S.C. § 3582(c)(2) (“Section 3582(c)(2)”), ECF No. 69. For the reasons 3 |j discussed below, the Court DENIES both motions. BACKGROUND 5 A. Statement of Facts 6 In December 2012, based on a tip from a confidential source (“CS”), Drug ||Enforcement Administration (“DEA”) agents and members of the San Diego County 8 || Integrated Narcotics Task Force (“NTF”) began surveillance at a specific Starbucks coffee 9 || shop in San Diego, California, in-anticipation of the arrival of a drug courier, later identified 10 || as Petitioner, from Los Angeles, California, who was to deliver methamphetamine to a 11 |}/DEA CS. PSR at 3. . 12 On December 5, 2012, at 3:06 p.m., the DEA and NTF observed Petitioner stop in 13 Starbucks parking lot driving an F-150 pickup truck registered to a third party in Los 14 |] Angeles. PSR at 3. Once parked, two CSs approached the Ford and began a conversation 15 || with Petitioner. /d. He exited the vehicle and continued to speak with one CS. Jd. After 16 brief conversation, the CSs walked away and entered their own vehicle while Petitioner 17 ||returned to his truck. /d. DEA agents followed both vehicles as they traveled on U.S. 18 Interstate 15 North. Jd. □ 19 Based on the Ford’s speed and tinted windows, a California Highway Patrol 20 ||(“CHP”) officer conducted a traffic stop of Petitioner. PSR at 3. A search of the Ford 21 ||truck revealed 22 individually wrapped packages of drugs contained inside a large 22 ||cardboard box in the truck bed. Jd. A DEA laboratory analysis determined that the net 23 || weight of the methamphetamine was 21.38 kilograms with 99.4% purity resulted in 21.25 24 kilograms of methamphetamine (actual). Jd. 25 26 All ECF-No. references are to the criminal case, 3:13-cr-00528-BEN-1, unless 97 otherwise noted. Any docket citations in this civil case will be referred to as “CV ECF No.” Further, unless otherwise indicated, all page number references are to the ECF- 28 generated page number contained in the header of each ECF-filed document.

1 B. Procedural History □ 2 On February 13, 2013,a grand jury issued an indictment against Petitioner, charging 3 with conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 846. ECF 4 1. On August 5, 2013, Petitioner failed to appear for his Trial Setting Conference, 5 No. 24, and the Court issued a warrant for his warrant, ECF No. 26. On August 13, 6 2020, the Court also ordered that Petitioner forfeit his bail. ECF No. 28. On December 7 2016, Petitioner was arrested and taken back into custody. ECF No.34. 8 _On February 3, 2017, Petitioner waived his right to prosecution by indictment and 9 ||consented to prosecution by information. ECF No. 41. That same day, a one-count 10 ||superseding information was filed in the Southern District of California, charging ||Petitioner with conspiracy to distribute methamphetamine pursuant to 21 U.S.C. §§ 12 ||841(a)(1) and 846. ECF No. 40. 13 On February 3, 2017, Petitioner entered a guilty plea. ECF. No 44. That same day, 14 ||he also signed a written plea agreement (the “Plea Agreement”), pursuant to which the 15 || parties agreed to jointly recommend Petitioner’s sentencing be based on the following U.S. 16 || Sentencing Guidelines Base Offense Level, Specific Offense Characteristics, Adjustments, 17 || and Departures: .

2 2 93 ||;ECF. No. 45 at 8. . 94 On March 27, 2017, prior to sentencing, a Pre-Sentence Investigation Report 25 \|(°PSR”) was prepared by the Probation Department, indicating Petitioner had a criminal 96 ||history category of “IV”, a base offense level of 38 and a total offense level of 40. ECF 27 ||No. 49 at 9, 14. The advisory guideline range was 360 months to life; however, the 2g maximum statutory sentence was 240 months, resulting in a guideline range of 240 months. =3-

1 ||ECF No. 49 at 9, 14. Probation recommended a sentence of 180 months pursuant to 18 2 U.S.C. § 3553(a). fd. at 17. On June 20, 2017, the Government filed its Sentencing 3 ||Summary Chart, in which it concurred with Probation’s calculation of the base offense 4 level and guideline range but recommended a sentence of 240 months. ECF. No. 53 at 2. 5 July 31, 2017, Petitioner filed his own Sentencing Memorandum, in which defense 6 counsel proffered a 60-month sentencing recommendation. See ECF. No. 56. 7 On August 7, 2017, the Court held a sentencing hearing and discussed the fact that 8 Petitioner had “a base offense level of 38 reduced by three levels” to 35 with “seven 9 |)criminal history points, which puts him in a Criminal History Category IV.” Sentencing Hearing Transcript, ECF. No. 65 at 5:16-21. After considering the 3553(a) factors, the 11 Court varied down to 180 months. /d. at 5:24-6:2. 12 On June 8, 2018, Petitioner filed a Motion to Modify His Sentence pursuant to 13 Section 3582(c)(2) and the new guideline amendment 782 to the United States Sentencing 14 }}Guidelines. ECF No. 69. 15 On July 5, 2019, Petitioner also filed the instant Motion pro se, seeking a reduction 16 his sentence pursuant to Section 2255. ECF No. 72; see also CV ECF No. 1. However, 17 December 4, 2019, Petitioner filed a Motion to Withdraw His Motion, acknowledging 18 by doing so, his civil case would be dismissed with prejudice. ECF No. 83 at 1. He 19 || advises that he “intends to seek his transfer to Mexico pursuant to the US/Mexico Prisoner 20 Transfer Treaty so that he can be visited by his ailing father in Mexico, and understands 21 ||that while this writ is pending, he is precluded from transfer to Mexico under the treaty.” 22 ||ECF No. 83 at 2:3-8. . 23 Because Petitioner has withdrawn his Motion pursuant to Section 2255, the Court 24 || addresses only his remaining motion brought pursuant to Section 3582(c)(2). 25 LEGALSTANDARD — 26 Generally, a “court may not modify a term of imprisonment once it has been 27 ||imposed,” 28 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 819 (2010) 28 || (quoting 18 U.S.C. § 3582(c)); United States v. Keller, No. 20-50247, ---F.4th---, 2021 WL 4.

1 || 2695129, at *2 (9th Cir. July 1, 2021). However, an exception allows courts to do so where 2 the Court sentenced the defendant “based on a sentencing range that has subsequently been 3 lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(0),” where either the 4 defendant, or the Director of the Bureau of Prisons, moves for a reduction. 18 U.S.C. § 5 || 3582(c)(1) (2018); see also United States v. Navarro, 800 F.3d 1104, 11 10 (9th Cir, 2015) 6 || (noting that “in an ‘act of lenity,” Congress has crafted a limited exception for prisoners 7 || who were sentenced based on Guidelines that have since been amended downward”). 8 The Supreme Court has clarified that motions to reduce a sentence pursuant to 9 || Section 3582(c)(2) involve a two-step inquiry. Dillon, 560 U.S. at 826. First, district courts 10 should consider whether a reduction is consistent with the applicable policy statements 11 |/issued by the Sentencing Commission in the United States Sentencing Guidelines Manual 12 ||§ 1B1.10. See id.; see also United States v. Hernandez- Martinez, 933 F.3d 1126, 1130 (9th 13 || Cir. 2019), cert. denied, 140 S. Ct. 879 (2020). “The policy statement applicable to § 14 ||3582(c)(2), United States Sentencing Guidelines Manual (“U:-S.S.G.”) § 1B1.10, 15 || authorizes a sentence reduction if, but only if, the retroactive amendment has the “‘effect 16 lowering the defendant’s applicable Guidelines range.’” fd. (citing US.S.G. § 17 || 1B1.10(a)(2)(B)). To apply this policy statement, ‘a court determines whether the 18 || Guidelines range is lowered by calculating the amended Guidelines range that would have 19 been applicable to the defendant if the relevant Guidelines had been in effect at the time 20 defendant was sentenced. Id. However, that determination is not the end of the 21 |jeligibility inquiry. “Another provision of the policy statement—the one of principal 22 {|relevance here—-generally prohibits sentence reduction if the original term of 23 ||imprisonment is below the lower end of the amended Guidelines range.” Id. (citing § 24 |11B1.10(b)(2)(A)). 25 Second, courts consider “whether the authorized reduction is warranted, either in 26 || whole or in part, according to the factors set forth in § 3553(a).” Dillon, 560 U.S. at 826. 27 || Those factors require courts to consider the (1) “nature and circumstances of the offense 28 the history and characteristics of the defendant”; (2) “need for the sentence imposed”; 5-

1. “kinds of sentences available”; (4) “kinds of sentences and the sentencing range 2 established”; (5) “pertinent policy statement”; (6) “need to avoid unwarranted sentence 3 || disparities among defendants with similar records who have been found guilty of similar 4 || conduct”; and (7) “need to provide restitution to any victims.” 18 U.S.C. 3553{(a). 5 DISCUSSION 6 Petitioner moves for a reduction in sentence under Section 3582(c), arguing that 7 |}amendment 782 to the Sentencing Guidelines warrants a modification of his sentence. He 8 argues that “[o]n November 1, 2014[,] the United States Sentencing Commission passed -9 Amendment 782 to the United States Sentencing Guidelines and reduced some □□□□□□□□□ 10 || |by two levels.” ECF No. 69 at 1. He contends “this amendment had an effect on the 11 ||sentence imposed by this Court in this case, and therefore[,] moves this Court to reduce 12 || and amend the sentence imposed on this case.” Jd. 13 Amendment 782 to the United States Sentencing Guidelines “increased the quantity 14 || of actual methamphetamine that triggers a base offense level of 38—from 1.5 kilograms to 15 kilograms.” United States v. Valdez, No. CR 08-00694 SBA, 2020 WL 922759, at *2 16 ||(N.D. Cal. Feb. 26, 2020); see also United States v. Spears, 824 F.3d 908, 917 (9th Cir. 17 2016) (“Amendment 782 further raised the crack cocaine quantity thresholds in the drug 18 || quantity table.”); compare U.S.S.G. § 2D1.1(c) (2012), with U.S.S.G. § 2D1.1(c) (2014). 19 Here, Petitioner pled guilty to possessing 21.25 kilograms of methamphetamine 20 || (actual). PSR at 3,97. Thus, “[a]lthough Amendment 782 increased the quantity of actual 21 ||methamphetamine that triggers a base offense level of 38—from 1.5 kilograms to 4.5 22 || kilograms—the quantity possessed by Defendant still far exceeds that threshold.” United 23 || States v. Valdez, No. CR 08-00694 SBA, 2020 WL 922759, at *2 (N.D. Cal. Feb, 26, 2020) 24 ||(denying the defendant’s motion to reduce his sentence pursuant to Section 3582 because 25 ||“Amendment 782 is of no benefit to Defendant” where “Defendant possessed 60 kilograms 26 actual (pure) methamphetamine”). Accordingly, “Defendant’s base offense level and 27 ||resulting guideline range therefore remain the same, rendering him ineligible for a sentence 28 |jreduction under section 3582(c)(2).” Jd. (citing United States v. Mercado-Moreno, 869 -6-

1 || F.3d 942, 953 (9th Cir. 2017) (holding that, if a defendant is responsible for 4.5 kilograms 2. more of actual methamphetamine, “he still receives the maximum base offense level and 3 |) Amendment 782 does not alter his sentencing range—thus precluding him from a reduction 4 || under § 3582(c)(2)”). 5 Thus, because 21.25 kilograms still exceeded the level triggering a base offense level 6 38, Amendment 782 had no effect on Petitioner’s sentence. See, e.g., See, e.g., United 7 || States v. Guerrero, No. 07-CR-676-BEN, 2020 WL 2556378, at *1 (S.D. Cal. May 20, 8 ||2020) (denying a similar motion for a sentence reduction pursuant to Section 3582(c)(2) 9 || based on the 782 amendment where the defendant had been convicted of possessing 8.682 10 |/kilograms of methamphetamine (actual) and sentenced to 240 months to life based on a 11 || base offense level of 38; the amended guidelines had no change on his base level given the 12 || actual sentence was far below a two level reduction of the low-end of the guidelines range). 13 the base offense level is reduced two levels, the total offense level of 38 would still yield 14 advisory guideline range of 324 to 405 months. Defendant was sentenced to 180 15 |}months, far below the low-end of the Guideline range as calculated. 16 Therefore, Defendant's Motion for Reduction in Sentence Pursuant to Section |[3582(c)(2) is DENIED. 18 CONCLUSION 19 For the above reasons, the Court orders as follows: 20 1. Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 21 || Section 2255 is DENIED as moot given his request to withdraw the filing. 22 2. Petitioner’s Motion to Modify His Sentence pursuant to 18 US.C. § 23 3582(c)(2) and the new guideline amendment 782 to the United States Sentencing 24 Guidelines is DENIED. ECF No. 69. 25 IT IS SO ORDERED. . 26 || DATED: August 24, 2021 27 | f . ROGER T, BENITEZ nited States District Judge 28

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