United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
Defendant, Alex Guerrero, has filed a “Motion to Reduce
Sentence, Pursuant to Hughes v. United States
(Decided June 4, 2018), and 18 U.S.C. § 3582(c)”
[ECF No. 1453). For the reasons set forth herein, the Court
DENIES the Defendant's Motion.
Defendant argues that he was previously denied the benefit of
a retroactive reduction in his Guideline sentence due to the
Court's interpretation of § 3582(c)'s
application to binding plea agreements. According to the
Defendant, “[u]nder the Supreme Court's most recent
decision, overruling the Freeman [v. United
States, 564 U.S. 522 (2011)] concurrence, and finding that
even those individuals with [Rule] 11(c)(1)[(C)] agreements
may be eligible for a reduction in sentence when a change in
the law reduces their sentencing guidelines, [the Defendant]
is eligible for a reduction in his sentence pursuant to Title
18, United States Code, Section 358(c).” (Mot. 1,
citing Hughes v. United States, 138 S.Ct. 1765
are limited grounds to revisit a sentence after it is
imposed. See United States v. Goode, 342 F.3d 741,
743 (7th Cir. 2003). Rule 35 allows adjustment of a sentence
in three circumstances only: the judge may correct
arithmetical, technical or other clear errors within seven
days; the judge may correct a sentence on remand following an
appeal; and the judge may reduce a sentence on a
prosecutor's motion to reward substantial assistance that
occurs after the date of sentencing. United States v.
Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004). 18 U.S.C.
§ 3582 also defines the circumstances under which
district courts may modify sentences and otherwise prohibits
district courts from doing so, unless “expressly
permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B).
The exception in § 3582(c)(2) provides that “[i]n
the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . .
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.” § 3582(c)(2).
Defendant invokes § 3582(c) and predicates his Motion on
the assertion that he entered into a plea agreement that is
similar to a “Type-C” agreement, see
Fed. R. Crim. P. 11(c)(1)(C), because the parties agreed upon
a particular sentence in return for the Defendant's
substantial assistance. The recommendations in the
Defendant's Plea Agreement [ECF No. 501] were nonbinding
on the Court. See Fed. R. Civ. P. 11(c)(1)(B).
Paragraph 8 begins, “The United States of America and I
have also entered into the following agreements which are not
binding upon the Court, . . .” (Plea Agr. 8, ECF No.
501.) During the change of plea hearing, the Court confirmed
with the Defendant that he understood that the Court would
ultimately decide his sentence and that neither the
Government's recommendations nor the Guidelines were
binding. (Tr. for Aug. 2, 2012, Change of Plea Hr'g, ECF
No. 1114 at 26-31). This included clear notification that the
Government's recommendation that the Defendant be
sentenced to a term of imprisonment of 228 months was not
binding on the Court. (Id. at 30-31).
the holding in Hughes, that a defendant whose
sentence was imposed pursuant to a binding agreement may seek
a reduction when the Guidelines range is amended, has no
bearing in this case. In any event, the Defendant was already
denied a reduction under 18 U.S.C. § 3582(c)(2) for
Guideline Amendment 782, not because of any application or
interpretation of his plea agreement, but because his
sentencing range was not subsequently lowered. (10/27/15
Order, ECF No. 1262.) The Defendant claims that this decision
was based on a miscalculation of the Guidelines. However, the
time for appealing that decision has passed, and a successive
motion under § 3582(c)(2) has no validity. See
United States v. Beard, 745 F.3d 288, 292 (7th Cir.
2014) (noting that once a court decides a § 3582(c)
motion for reduction of sentence related to a Guideline
amendment, “Rule 35 applies and curtails any further
power of revision, unless the Commission again changes the
Guidelines and makes that change, too, retroactive”)
(quoting United States v. Redd, 630 F.3d 649, 651
(7th Cir. 2011)). The Defendant is not statutorily eligible
for a sentence reduction.
not mentioned in the title of his Motion, the Defendant
asserts in the final paragraph of his Motion that the First
Step Act, and the retroactive application of the Fair
Sentencing Act, applies. Section 404 of the First Step Act
permits a court to reduce a defendant's sentence for a
crack cocaine offense, but only if the Court had imposed that
sentence before another statute-the Fair Sentencing
Act-lowered the statutory sentencing range for that crack
cocaine offense. First Step Act, § 404(b). The authority
to reduce a sentence applies only to (1) federal offenses (2)
committed before August 3, 2010, the effective date of the
Fair Sentencing Act, (3) for which the Fair Sentencing Act
changed the statutory penalty range, i.e., certain crack
cocaine offenses. See First Step Act, § 404(a);
see also Dorsey v. United States, 567 U.S. 260, 269
(2012) (noting that the Fair Sentencing Act “increased
the drug amounts triggering mandatory minimums for crack
trafficking offenses from 5 grams to 28 grams in respect to
the 5-year minimum and from 50 grams to 280 grams in respect
to the 10-year minimum”).
Fair Sentencing Act does not apply to any of the
Defendant's offenses: conspiracy to participate in
racketeering activity in violation of 18 U.S.C. § 1962;
conspiracy to possess with intent to distribute and
distribute cocaine and marijuana in violation of 21 U.S.C.
§ 846; interference with commerce by threats or
violence, in violation of 18 U.S.C. § 1951; and using
and carrying a firearm during and in relation to crimes of
violence and drug trafficking, in violation of 18 U.S.C.
reason stated, the Defendant's Motion [ECF ...