Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gutierrez

United States Court of Appeals, Tenth Circuit

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JASON GUTIERREZ, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:05-CR-02373-WJ-5)

         Submitted on the briefs:[*]

          James C. Loonam, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          Damon P. Martinez, United States Attorney, and C. Paige Messec, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

          I. INTRODUCTION

         Defendant Jason Gutierrez is serving a 192-month term in federal prison. After the United States Sentencing Commission amended several of the guidelines under which he was sentenced, Mr. Gutierrez filed a motion under 18 U.S.C. § 3582(c)(2), asking the district court to reduce his sentence to 168 months. Instead, the district court reduced his sentence to 188 months, concluding it lacked authority to go any lower. Mr. Gutierrez appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         II. BACKGROUND

         Mr. Gutierrez pled guilty in 2006 to one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. A probation officer prepared a presentence investigation report ("PSR") which assigned Mr. Gutierrez a total offense level of 35 and a criminal history category of IV, together yielding a United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines") imprisonment range of 235 to 293 months. The PSR arrived at a criminal history category of IV after concluding that Mr. Gutierrez had accrued seven criminal history points, one of which was a "recency" point added because Mr. Gutierrez committed the current offense within two years of being released from custody on a prior conviction. Ultimately, however, the PSR determined that category IV "substantially over-represented" Mr. Gutierrez's criminal history and recommended that a criminal history category of III would be more appropriate.

         At sentencing, the district court agreed with the PSR's recommendation and granted Mr. Gutierrez a downward departure to criminal history category III, pursuant to

          U.S.S.G. § 4A1.3(b)(1).[1] The court also sentenced Mr. Gutierrez using a total offense level of 34, rather than 35, "to account for disparity with other defendants." These alterations yielded a Guidelines imprisonment range of 188 to 235 months. On April 30, 2007, the district court sentenced Mr. Gutierrez to 192 months in prison and five years of supervised release.

         Over the next seven years, the United States Sentencing Commission ("Commission") amended the Guidelines in several ways relevant to this appeal. In 2010, the Commission issued Amendment 742, which eliminated the use of recency points in calculating a defendant's criminal history category. See U.S.S.G. app. C, vol. III, amend. 742, Reason for Amendment, at 355-56. The Commission did not make Amendment 742 retroactive.

         In 2011, the Commission issued Amendment 759, which modified U.S.S.G. § 1B1.10, the policy statement governing sentence-reduction proceedings under 18 U.S.C. § 3582(c)(2). See U.S.S.G. app. C, vol. III, amend. 759. Section 3582(c)(2) allows a district court to reduce a defendant's sentence if the sentence was based on a Guidelines range that the Commission has subsequently lowered, so long as the reduction is consistent with the strictures of § 1B1.10. See 18 U.S.C. § 3582(c)(2). Section 1B1.10 provides that, in considering a sentence reduction, a district court must recalculate the defendant's Guidelines range in light of any applicable retroactive amendments and may reduce the defendant's sentence to a term that falls within that amended range. See U.S.S.G. § 1B1.10(a)-(b). Amendment 759 significantly impacted the courts' discretion during this process.

         Before Amendment 759 went into effect, § 1B1.10 included a meaningful exception to the requirement that a reduced sentence must fall within the amended range. Specifically, it endorsed sentence reductions below the amended Guidelines range if the defendant's original sentence had been below the then-applicable Guidelines range. In such cases, district courts were free to reduce the sentence below the amended range by a number of months comparable to the original downward departure. See U.S.S.G. app. C, vol. III, amend. 759, Reason for Amendment, at 420. Amendment 759 curtailed this practice substantially, modifying § 1B1.10 such that a district court now may reduce a defendant's sentence below the amended Guidelines range only if the defendant originally received a below-Guidelines sentence for providing substantial assistance to the government. See id.; see also id. § 1B1.10(b)(2)(A)-(B).

         Last, in 2014, the Commission issued Amendment 782, which reduced by two the offense levels ascribed to many drug offenses under U.S.S.G. § 2D1.1, including Mr. Gutierrez's offense. See U.S.S.G. supp. to app. C, amend. 782. The Commission made Amendment 782 retroactive, and thus available as a potential basis for a sentence reduction pursuant to § 3582(c)(2). See U.S.S.G. supp. to app. C, amend. 788, Reason for Amendment, at 86; see also id. § 1B1.10(d).

         On February 24, 2015, Mr. Gutierrez filed a pro se motion seeking a sentence reduction under § 3582(c)(2) in light of Amendment 782, and seeking appointment of counsel. Counsel was appointed soon thereafter. The government conceded that Mr. Gutierrez was eligible for a sentence reduction because Amendment 782 lowered his total offense level from 35 to 33, and the parties entered a stipulation to that effect. The parties disagreed, however, as to whether Mr. Gutierrez's amended Guidelines range should be calculated using a criminal history category of III or IV. Under category III, his amended range would be 168 to 192 months; under category IV, it would be 188 to 192 months. Mr. Gutierrez filed a "Motion to Have [the District] Court Impose a Reduced ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.