United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
Lawrence L. Piersol United States District Judge
Ruben Vega (Vega), filed a pro se pleading, construed by this
court as a motion for a sentence reduction. (Doc. 143.) In
its response, the government asserts that the motion should
be denied. (Doc. 147.) For the reasons set forth below, the
motion will be denied.
October 31, 2003, Vega entered a plea of guilty to the
offense of conspiracy to possess with intent to distribute
and to distribute 500 grams or more of a mixture and
substance containing methamphetamine, a Schedule II
controlled substance, in violation of 21 U.S.C. §§
841(a)(1) and 846. A few weeks prior to the plea, the
government filed a notice informing Vega of its intent to
seek increased punishment, pursuant to 21 U.S.C. §
851(a), based upon Vega's prior conviction for a felony
drug offense. Thus, the mandatory minimum sentence of
imprisonment applicable in Vega's case was 20 years'
imprisonment and the maximum penalty was life imprisonment.
See 21 U.S.C. § 841(b)(1)(A).
base offense level under the Sentencing Guidelines was 34
based upon the drug quantity. A two-level enhancement for
being an organizer, leader, manager or supervisor in any
criminal activity was applied pursuant to USSG §
3Bl.l(c), resulting in an offense level of 36. The drug
quantity calculation and the role in the offense, however,
were overridden by the career offender provisions in the
Guidelines. Specifically, Vega's base offense level of 36
was adjusted upward to 37 under USSG § 4B1.1 based on
Vega's status as a career offender for two prior felony
drug offenses. The offense level was decreased by three
levels for Vega's acceptance of responsibility. Thus, the
total offense level was 34, with a criminal history category
VI, resulting in a sentencing range of 262 to 327 months'
imprisonment. On January 26, 2004, this Court sentenced Vega
to serve 262 months' imprisonment, a sentence that was at
the the bottom of the guideline range but still within the
20-year mandatory minimum sentence. Vega did not appeal his
sentence to the Eighth Circuit.
November 1, 2004, Vega filed a Motion to Vacate, Set Aside or
Correct sentence pursuant to 28 U.S.C. § 2255.
(See Civ. 04-4174, Doc. 1.) Vega first argued that
the Court lacked jurisdiction to impose a sentence higher
than the 20-year mandatory minimum under 21 U.S.C. §
841(b)(1)(A). Rejecting this argument, this Court noted that
Vega admitted in the Amended Factual Basis Statement, signed
by Vega on October 31, 2003, that the conspiracy
"resulted] in the distribution of over 500 grams of
methamphetamine." (See Civ. 04-4174, Doc. 13.) In
Blakely, the Supreme Court made clear that the statutory
maximum for Apprendi purposes is "the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the
defendant." Blakely v. Washington, 542 U.S. 296,
303 (2004) (emphasis added). Pursuant to 21 U.S.C. §
841(b)(1)(A), the maximum punishment is life imprisonment for
over 500 grams of a mixture and substance containing
methamphetamine. Thus, Vega was not entitled to relief under
Apprendi, because his sentence did not exceed the
statutory maximum applicable to the criminal conduct he
admitted in the Amended Factual Basis Statement.
(See Civ. 04-4174, Doc. 13.)
also asserted in his § 2255 that he received ineffective
assistance of counsel for two reasons. First, he complained
that counsel failed to object to the Court's lack of
jurisdiction to impose a sentence higher than the 20-year
mandatory minimum. (See Id. at Doc. 1.) Because no
violation of Apprendi occurred, as explained above,
this Court concluded that Vega's counsel's
performance was not deficient for failing to object to the
Court's sentence in excess of the mandatory minimum.
(Id. at Doc. 13.) Second, Vega contended that he
received ineffective assistance because his lawyer did not
object to the two-level role in the offense enhancement.
(Id. at Doc. 1.) Vega's guideline range,
however, was not governed by the drug quantity table with the
enhancement for role in the offense. Rather, it was
determined by application of the career offender provision in
USSG § 4B1.1. In other words, this Court was required to
apply the § 4B1.1 base offense level of 37 because it
exceeded Vega's base offense level of 36. See
USSG § 4B 1.1(b) (career criminal offense levels
calculated pursuant to § 4B 1.1(b) supersede lesser
levels that would be "otherwise applicable"). Thus,
counsel's failure to object to the role in the offense
enhancement was found not prejudicial to Vega, and this Court
ruled he could not prevail on this ineffective assistance of
counsel claim. (Id. at Doc. 13.)
28, 2005, this Court denied Vega's § 2255 motion to
vacate, and a certificate of appealability was not issued.
(See CIV 04-4174, Doc. 13.) On appeal, the Eighth
Circuit denied Vega's motion for a certificate of
appealability and dismissed his appeal. (Id. at Doc.
Sentencing Commission subsequently adopted Amendment 782
which became effective November 1, 2014, and was made
retroactive effective November 1, 2015. See United States
v. Lawin, 779 F.3d 780, 781 n. 2 (8th Cir. 2015);
United States v. Thomas, 775 F.3d 982, 983 (8th Cir.
2014) ("[T]he Commission expressly made Amendment 782
retroactive (effective November 1, 2015).").
Essentially, Amendment 782 "applies retroactively to
reduce most drug quantity base offense levels by two
levels." Lawin, 779 F.3d at 781 n. 2 (citing
Thomas, 775 F.3d at 982).
April 17, 2015, Vega filed a motion with this Court to reduce
his sentence pursuant to 18U.S.C. § 3582(c)(2) based on
the retroactively-amended drug quantity base offense levels.
(Doc. 133.) In his §35 82(c)(2) motion, Vega argued that
Amendment 782 should be applied to reduce his offense level
by two levels, from 34 to 32, resulting in a guideline range
of 210 to 262 months rather than 262 to 327 months of
imprisonment. This Court determined that Vega was ineligible
for a sentence reduction under § 3582(c)(2) and denied
his motion. (Doc. 137.) The Court reasoned that United
States v. Thomas, 775 F.3d 982 (8th Cir. 2014) (per
curiam), barred a sentence reduction for Vega because his
applicable guideline range was based on the career-offender
table in USSG § 4B 1.1(b) and not the offense levels
listed in USSG § 2D 1.1 for drug quantity, and thus the
new guidelines did not alter the career offender range. In
Thomas, the Eighth Circuit construed the applicable
guideline and policy statements and held that when a
defendant is found to be a career offender and is sentenced
under § 4B 1.1, the applicable guideline range under
§ 3582(c)(2) is his career-offender range and Amendment
782 does not lower that guideline range. Applying that
reasoning to Vega, even if he were resentenced with the newer
guidelines, his applicable guideline range would be precisely
the same: 262 to 327 months. Because Amendment 782 did not
have the effect of lowering Vega's applicable guideline
range, a reduction in his term of imprisonment was not
authorized and his motion pursuant to 18 U.S.C. §
3582(c)(2) was denied.
pending motion filed on May 31, 2016, Vega says he believes
he should have received a lesser sentence, and he requests a
lower sentence. (Doc. 143.) Vega argues that his two prior
felony convictions were not serious enough to justify his
career offender status, that he should not have received the
two "points" for being an organizer or leader, and
that he has been rehabilitated and is ready for society.
district court has imposed a term of imprisonment, the
general rule is that the court may not modify that term.
Title 18 U.S.C. § 3582 provides for modification of an
imposed term of imprisonment in only three circumstances: (1)
in certain circumstances "upon motion of the Director of
the Bureau of Prisons"; (2) "to the extent
otherwise expressly permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure"; or (3) "upon
motion of the defendant or the Director of the Bureau of
Prisons, " or on the court's own motion in cases
where the applicable sentencing range "has subsequently
been lowered by the Sentencing Commission." 18U.S.C.
§§ 3582(c)(1)(A), (c)(1)(B), (c)(2). The Director
of the Bureau of Prisons has not made a motion and thus the
first exception is inapplicable here. Avenue three has
already been rejected by this Court when it denied Vega's
first § 3582(c)(2) motion for a sentence reduction in
its Order issued on August 19, 2015. (Doc. 137.) Vega has not
come forward with any new evidence or authority in favor of a
sentence reduction under 18 U.S.C. § 3582(c)(2). The
second exception offers Rule 35, and possibly 28 U.S.C.
§ 2255, as potential sources of authority to support
Vega's motion to reduce his sentence, and the Court will
address those in turn.
of the Federal Rules of Criminal Procedure empowers a court
to correct or reduce a defendant's sentence in two
specified instances. Subsection (a) authorizes a district
court to correct a sentence "that resulted from
arithmetical, technical, or other clear error" within 14
days after sentencing. Subsection (b) grants a court
authority to reduce a sentence to reflect a defendant's
subsequent, "substantial assistance in investigating or
prosecuting another person" "upon the
government's motion." Fed.R.Crim.P. 35(b). Neither
of these subsections apply here. Subsection (a) does not
apply because the Court is not correcting Vega's sentence
within 14 days after the original sentence was imposed.
Because subsection ...