United States of America v. Alnardo Suarez

2018 DNH 222

• Court: District Court, D. New Hampshire
• Decided: November 8, 2018
• Docket: 08-cr-161-2-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 08-cr-161-2-SM Opinion No. 2018 DNH 222 Alnardo Suarez

O R D E R

Petitioner pled guilty to several offenses: one (1) count

of Unlawful Possession with Intent to Distribute Five or more

Grams of Cocaine Base (“Crack”), in violation of 21 U.S.C.

§§ 841(a) and 841(b)(1)(B)(ii); one (1) count of Unlawful

Possession of a Controlled Substance (marijuana) with Intent to

Distribute, in violation of 21 U.S.C. §§ 841(a) and

841(b)(1)(D); and one (1) count of Conspiracy to Distribute More

than Fifty Grams of Cocaine Base (“Crack”), in violation of 21

U.S.C. §§ 846 and 846(b)(1)(A). His plea was entered pursuant

to a “binding” agreement under Fed. R. Cr. P. 11(c)(1)(C) for a

fixed sentence of 150 months of incarceration.

Petitioner’s total offense level under the Sentencing

Guidelines was properly calculated to be 29 after adjustments.

Petitioner’s offense level and criminal history category would

have generated a guideline sentencing range of between 87 to 108

months, but for a mandatory minimum sentence of not less than 10

1 years (120 months) required, by statute, to be imposed on the

conspiracy offense. Five year (60 month) statutorily mandated

minimum sentences also applied to the two “possession with

intent” offenses.

The government and petitioner agreed to a 150-month

sentence in light of the applicable mandatory minimum sentences

and in consideration of the government’s dismissing a gun charge

(18 U.S.C. § 924(c)), that carried a five-year mandatory minimum

consecutive sentence. As petitioner says, given the

circumstances, the parties “split the difference between a 120-

month sentence and a 180-month sentence by agreeing to a

sentence of 150 months.” (Document no. 90).

Petitioner now seeks sentence relief under 18 U.S.C.

§ 3582(c)(2), asserting that he was initially sentenced “based

on a sentencing range” that was later lowered by the United

States Sentencing Commission. Petitioner invokes Amendment 782

to the Guidelines, and points to Hughes v. United States, ___

U.S. ___, 138 S. Ct. 1765 (2018), arguing that the initially-

applicable guideline sentencing range (absent the mandatory

minimum sentence to 120 months) has been lowered, and Hughes

explains that where the guidelines range played a “relevant

part” in the court’s imposition of sentence, the sentence can be

said to have been “based on” the guidelines range that was

subsequently lowered. Accordingly, a defendant is, under such

2 circumstances, eligible to be considered for discretionary

sentence relief.

Here, however, it is plain that petitioner’s sentence was

not based on a guideline range that was subsequently lowered.

His sentence was based on a guideline sentencing “range” of 120

months, given the applicable mandatory minimum, and upon the

parties’ plea agreement, part of the consideration for which was

dismissal of an additional charge carrying a consecutive 5-year

minimum. See U.S.S.G. § 5G1.1(b).

The Supreme Court’s decision in Koons v. United States, ___

U.S. ___, 138 S. Ct. 1783 (2018), resolved the issue presented

here. When a defendant is sentenced to a term of imprisonment

that is higher than the otherwise applicable guideline range

because a statutorily mandated minimum sentence prevails, as is

the case here, the imposed sentence is not one “based on” the

Guidelines, but rather on the statutory mandatory minimum. See

also United States v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010);

United States v. Mills, 613 F.3d 1070, 1077-78 (11th Cir. 2010);

United States v. Jones, 313 F. Supp. 3d 167 (D.D.C. 2018). “In

those cases, the mandatory minimum effectively supersedes the

guidelines range, which then drops out of the sentencing

framework and is not considered by the judge.” Jones, 313 F.

Supp. 2d at 170 (citing United States v. Valle, 635 Fed. Appx.

708, 710 (11th Cir. 2015)). It was not the now-lowered

3 guideline range upon which the sentence was based but the still-

applicable minimum sentence mandated by statute.

Petitioner is not entitled to sentence relief under 18

U.S.C. § 3582(c)(2), and appointed counsel has failed to make a

preliminary showing of petitioner’s eligibility for a sentence

reduction under Amendment 782. Accordingly, no further action

is required with respect to that potential claim.

Parenthetically, the court notes that it is not clear

whether petitioner’s correspondence seeking appointment of

counsel actually raises the claim or merely implies that such a

claim might be viable. Counsel’s response to the show cause

order, issued following appointment of counsel, properly makes

the case in support of petitioner’s eligibility for sentence

relief and is considered in that context. To the extent the

relief is actually sought under Amendment 782, it is, for the

reasons given, denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

November 8, 2018

cc: Seth R. Aframe, AUSA William E. Christie, Esq. U.S. Probation U.S. Marshal