                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

            v.                                              Criminal No. 12-cr-125-19 (CKK)
 GUADALUPE GALAVIZ,

    Defendant.


                                   MEMORANDUM OPINION
                                     (September 15, 2015)

        Presently before the Court is Defendant Guadalupe Galaviz’s [288] Motion for

Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c), which the Government

opposes. Galaviz requests that the Court modify or reduce his sentence based on § 3582(c) and

Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”), which retroactively

reduced by two levels the offense levels assigned to certain drug offenses. The Government

opposes the request, arguing that Galaviz is not eligible for a reduction in sentence and, if he is,

that the Court should not exercise its discretion to reduce his sentence. Upon consideration of the

pleadings, 1 the relevant legal authorities, and the record as a whole, the Court finds that it is within

its discretion to reduce Galaviz’s sentence pursuant to § 3582(c). As such, the Court shall permit

the parties to submit memorandums in aid of sentencing, setting forth their position as to whether

the Court should exercise its discretion to reduce Galaviz’s sentence and the reasons that support

their position. Accordingly, Mr. Galaviz’s motion is HELD IN ABEYANCE pending the Court’s



        1
          Def.’s Mot. for Mod. or Red. of Sentence (“Def.’s Mot.”), ECF No. [288]; Mem. from
U.S. Probation Office (“Prob. Mem.”), ECF No. [302]; Def.’s Reply in Opp’n to Mem. (“Def.’s
Opp’n to Prob. Mem.”), ECF No. [303]; Govt.’s Opp’n to Mot. for Mod. or Red. of Sentence
(“Govt.’s Opp’n”), ECF No. [310]; Def.’s Resp. to Govt.’s Opp’n to Def.’s Mot. to Mod. or Red.
of Sentence (“Def.’s Resp. to Govt.’s Opp’n”), ECF No. [329].
receipt of the parties’ memorandums.

                                       I. BACKGROUND

       Galaviz was charged by indictment with one count of conspiracy to distribute and possess

with intent to distribute five kilograms or more of cocaine and 28 grams or more of cocaine base

in violation of 21 U.S.C. § 846. Indictment, ECF No. [25]. On November 6, 2013, pursuant to

Federal Rule of Criminal Procedure 11(c)(1)(C), Galaviz pled guilty to one count of conspiracy to

distribute and possess with intent to distribute one kilogram or more of heroin in violation of 21

U.S.C. §§ 846, 841(a), and 841(b)(1)(A)(i), and one count of conspiracy to distribute and possess

with intent to distribute 500 grams or more of cocaine powder in violation of 21 U.S.C. §§ 846,

841(a), and 841(b)(1)(B)(ii). See Plea Agmt., ECF No. [229]. Pursuant to the terms of the plea

agreement, the parties agreed that the appropriate sentence of imprisonment should be 15 years

(180 months). Id. at 2. After conducting a plea hearing, the Court accepted the plea agreement

and, on February 6, 2014, the Court sentenced Galaviz to a term of 180 months imprisonment on

both counts to run concurrently, with credit for time served. Judgment, ECF No. [268]. Galaviz

did not appeal his sentence and conviction, and currently is serving the term of imprisonment.

       Pending before the Court is Galaviz’s Motion for Modification or Reduction of Sentence

Pursuant to 18 U.S.C. § 3582(c). Galaviz argues that the Court should reduce his sentence in light

of Amendment 782 to the Sentencing Guidelines which permits the retroactive reduction in the

base offense levels for certain drug offenses. The Government opposes Galaviz’s motion and the

United States Probation Office recommends that the Court not reduce Galaviz’s sentence.

                                       II. DISCUSSION

       Generally, a federal court “may not modify a term of imprisonment once it has been

imposed.” 18 U.S.C. § 3582(c); see also Dillon v. United States, 560 U.S. 817, 819 (2010).

                                                2
However, section 3582(c) of Title 18 of the United States Code provides three exceptions to this

general rule. Specifically, the Court is authorized to modify a term of imprisonment once imposed

only under one of these circumstances: (1) upon motion by the Director of the Bureau of Prisons;

(2) when expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) where

the applicable sentencing guideline range has been retroactively lowered by the Sentencing

Commission. 18 U.S.C. § 3582(c)(1)-(2).

       Here, Galaviz bases his claim on Amendment 782, a retroactive amendment to the

applicable sentencing guideline range in the instant action. The parties dispute whether Galaviz is

eligible for a sentence reduction pursuant to 18 U.S.C. § 3582 and, if he is eligible, the applicable

guideline range should his sentence be reduced. The Court shall address each issue in turn.

       A. Galaviz’s Eligibility for a Sentence Reduction

       The Government argues that Galaviz is ineligible for a sentencing reduction for two

reasons. First, the Government argues that pursuant to the terms of his plea agreement, Galaviz

waived his right to seek a reduction of his sentence under 18 U.S.C. § 3582(c). Govt.’s Opp’n at

6-7. Second, the Government argues that even if Galaviz did not waive his right to seek a sentence

reduction, he is otherwise ineligible for a reduction because his sentence was not based on the

applicable guideline range at the time of sentencing. Id. at 8.

       Turning to its first argument, the Government contends that Galaviz waived his right to

seek a sentence reduction pursuant to 18 U.S.C. § 3582(c) based on the terms of his plea

agreement. 2 “A ‘knowing, intelligent, and voluntary’ waiver of the right to appeal ‘generally may



       2
         While the D.C. Circuit has not specifically addressed the issue of whether a criminal
defendant’s waiver of his right to seek relief under § 3582(c) based on a retroactive amendment to
the sentencing guidelines is enforceable, the Tenth Circuit has reached the issue and held that such
waivers are enforceable if they are made knowingly and voluntarily, and enforcement of the
                                                  3
be enforced.’” United States v. Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015) (quoting United

States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009)). As the United States Court of Appeals for

the District of Columbia Circuit explained:

       An anticipatory waiver—that is, one made before the defendant knows what the
       sentence will be—is nonetheless a knowing waiver if the defendant is aware of and
       understands the risks involved in his decision. If ‘the record [shows] that [the
       defendant] knows what he is doing and his choice is made with eyes open,’ . . . then
       the Court will enforce an anticipatory waiver.

Guillen, 561 F.3d at 529-30 (internal citations omitted). The Court notes that in the instant action,

Galaviz and the Government agreed upon a sentence pursuant to Rule 11(c)(1)(C).

       Here, the Government argues that Galaviz gave a knowing, intelligent, and voluntary

waiver of the right to seek a sentence reduction pursuant to 18 U.S.C. § 3582. The Government

cites to the language of the written plea agreement in support of this contention. Govt.’s Opp’n at

2. In relevant part, the written plea agreement entered into by Galaviz indicates:

       Your client also waives any right to challenge the conviction or sentence or
       otherwise attempt to modify or change the sentence or the manner in which it was
       determined in any collateral attack, including, but not limited to, (a) a motion
       brought under 28 U.S.C. § 2255, except to the extent such a motion is based on
       newly discovered evidence or on a claim that your client received ineffective
       assistance of counsel in entering into this Agreement; (b) a motion brought under
       18 U.S.C. § 3582(c)(2); and (c) a motion brought under Federal Rule of Civil
       Procedure 60(b).

Plea Agmt. at 8 (emphasis added). Based on this language in the plea agreement, the Government

argues that Galaviz explicitly waived his right to bring the instant motion. Govt.’s Opp’n at 6.

While the Court agrees that the language of the written plea agreement appears to demonstrate that




waivers would not result in a miscarriage of justice. See, e.g., United States v. Frierson, 308 Fed.
App’x 298, 299 (10th Cir. 2009). The Court finds that based on the facts of this case, any such
waiver in this action was not knowing and voluntary. As such, the Court need not address the
issue of whether such a waiver is generally enforceable in this jurisdiction.
                                                 4
Galaviz may have waived his right to request a sentence reduction, the Court cannot conclude that

any such waiver was knowing, intelligent, and voluntary based on a review of the record as a

whole.

         Specifically, the Government’s argument fails based on the discussion that took place on

the record during Galaviz’s plea hearing. Indeed, during the plea hearing, the parties and the Court

discussed the waiver in question:

         THE COURT: Okay. Why don’t I—I’ll go through the next paragraph because it
         actually is also a waiver giving up a right.

         The—once the Court has sentenced you, then you—besides a direct appeal, which
         we’ve just talked about, there is what we call a collateral attack, and this can be—
         it’s under a particular motion, it’s by Statute 2255. And it generally is things that
         are found out at a later point that you wish to bring up that may not have been
         brought up with your direct appeal, or if you didn’t directly appeal, they may be
         things that you can bring up.

         Now, in this particular case you’ve agreed not to file that, but if you find out new
         evidence that something came up, or if you’re bringing a claim that your lawyer
         didn’t provide you with effective assistance, then you can go ahead and file that
         kind of attack. It’s another way of appealing, basically, your sentence. Do you
         understand that so far?

         THE DEFENDANT: Yes.

         THE COURT: Okay. Now, they’ve added in here the exceptions include the newly
         discovered evidence, in other words, you could if you found newly discovered
         evidence filed this 2255. If you’re claiming you’ve had—you know, your lawyer
         didn’t effectively represent you, you could file a 2255. And if you brought a
         motion under 3582(c)(2), and that relates to if the Sentencing Commission—
         which is the one that comes up with these guidelines—if they subsequently
         lower them, and then either on your motion or the Bureau of Prisons’, I
         could—I would be able to reduce your term of imprisonment after considering
         various factors. So you reserve that right to be able to, if the sentencing
         guidelines change and are lower, to come back under certain circumstances to
         request the Court to lower the sentence, even if it is this Rule 11(c)(1)(C). Do
         you understand that?

         THE DEFENDANT: I do.


                                                  5
Tr. 32:11—33:18 (Nov. 6, 2013), ECF No. [309] (emphasis added). No objection was made by

either party at the plea hearing to this mistaken characterization of Galaviz’s remaining rights if

the plea agreement was accepted by the Court. Given the conflicting information in the record, the

Court rejects the Government’s assertion that Galaviz waived his right to bring a motion pursuant

to § 3582(c)(2) based on the terms of plea agreement.

       Turning to the Government’s next argument, the Government contends that even if the

Court finds that Galaviz did not waive his right to bring the instant motion, his claim should

nevertheless be denied because the Court based his sentence on the parties’ Rule 11(c)(1)(C) plea

agreement and not on the relevant guideline range. In Freeman v. United States, -- U.S. --, 131 S.

Ct. 2685 (2011), the Supreme Court of the United States addressed the issue of whether a criminal

defendant who enters into a plea agreement that recommends a particular sentence as a condition

of the plea pursuant to Rule 11(c)(1)(C) may be eligible for relief under 18 U.S.C. § 3582. Id. at

2690. In Freeman, a majority of the Court in fragmented opinions held that there is no per se rule

barring a defendant who enters into a Rule 11(c)(1)(C) plea agreement that is subsequently

accepted by the Court from seeking a reduction of his sentence pursuant to § 3582(c)(2) based on

a retroactive amendment to the sentencing guidelines. However, the plurality and the concurring

opinions set forth different reasons for reaching the ultimate holding. The four-Justice plurality

held that a defendant could seek relief under § 3582(c)(2) if the judge’s sentencing decision was

“based on” the guideline range. Freeman, 131 S. Ct. at 2695 (“Even when a defendant enters into

an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended

sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to

seek § 3582(c)(2) relief.”). In a concurring opinion, Justice Sonia Sotomayor found that the focus

of the relevant inquiry should be whether the plea agreement between the parties used the

                                                 6
guideline sentencing range that has subsequently been lowered. Id. at 2699 (Sotomayor, J.,

concurring).

       In United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013), the D.C. Circuit addressed the

Supreme Court’s split opinion in Freeman and held that the plurality opinion controls in this

Circuit. Id. at 351 (“[T]he question for the court, upon independent analysis of the statute, is when

a sentence is ‘based on a sentencing range that has subsequently been lowered by the Sentencing

Commission.’”); In re Sealed Case, 722 F.3d 361, 365 (D.C. Cir. 2013) (explaining that the D.C.

Circuit held in Epps that the plurality opinion in Freeman, “guides our determination whether a

sentence was ‘based on’ a subsequently-lowered range”). As such, the relevant inquiry is whether

this Court, as the sentencing court in this action, based its sentencing decision on the guideline

range that was retroactively lowered by the Amendment 782 to the Sentencing Guidelines. As the

D.C. Circuit explained, “[A] defendant’s sentence is ‘based on’ a subsequently-lowered guideline

range ‘to whatever extent’ that range ‘was a relevant part of the analytic framework the judge used

to determine the sentence . . . .’” In re Sealed Case, 722 F.3d at 368 (quoting Freeman, 131 S. Ct.

at 2692-93).

       Here, the Government argues that Galaviz’s sentence was not based on the subsequently-

lowered guideline range because “Defendant’s plea agreement specified a jointly recommended

sentence that was at least 30 months shorter than the otherwise applicable guideline range.”

Govt.’s Opp’n at 8. As such, the Government argues that the sentence imposed by the Court was

not based on the guideline range because it was actually lower than the range. Id. The Court

disagrees with the Government’s contention that this Court did not base its decision on the

subsequently-lowered guideline range when deciding to accept the parties’ plea agreement

pursuant to Rule 11(c)(1)(C). Indeed, at the plea hearing, the Court specifically discussed the

                                                 7
parties’ proposed sentence after setting forth the applicable guideline range and explaining that the

Court could apply a variance or departure if it were to sentence Galaviz below the guideline range.

Tr. 67:15—74:22 (Nov. 6, 2013).         Ultimately, the Court applied a variance/departure and

sentenced Galaviz to 180 months on each count to run concurrently, below the 210 to 262 month

range under the guidelines. While the Court accepted the parties’ agreed-upon sentence, the Court

notes that the guideline range was a relevant part of the analytic framework that it used to

determine the appropriate sentence and, as such, its sentencing decision was “based on” the

subsequently-lowered guideline range. Accordingly, the Court concludes that Galaviz is eligible

for a sentence reduction pursuant to 18 U.S.C. § 3582(c) and Amendment 782 to the Sentencing

Guidelines.

       B. Applicable Revised Guideline Range

       The parties next dispute the applicable guideline range that should be applied to Galaviz

based on Amendment 782. In 2014, the United States Sentencing Commission issued Amendment

782, which retroactively reduced the offense level for certain drug trafficking offenses. See

U.S.S.G. app. C, amend. 782 (2014). Following the procedures set forth in this jurisdiction, the

instant motion was referred to the United States Probation Office for a recalculation of Galaviz’s

offense level and criminal history category based on the Amendment. In response to that referral,

the Probation Office filed a Memorandum providing the Court with revised guideline calculations.

The parties appear to agree with the U.S. Probation Office’s calculation that pursuant to

Amendment 782, Galaviz’s total offense level should be reduced two levels. See Def.’s Reply to

Prob. Mem.; Govt.’s Opp’n at 5. However, the Government argues that Galaviz should be treated

as a defendant with a total adjusted offense level of 35, Govt.’s Opp’n at 5, whereas Galaviz argues

that he should be treated as a defendant with a total adjusted offense level of a 33. Def.’s Reply

                                                 8
to Prob. Mem. at 2. For the reasons described herein, the Court agrees with the Government that

any reduction of Galaviz’s sentence shall be within the range for a defendant with a total adjusted

offense level of 35.

         In the criminal judgment in the instant action, the Court determined that Galaviz’s total

offense level was a 37 and his criminal history category was I. As such, the imprisonment range

under the guidelines was 210 to 262 months. Stmt. of Reasons at 1, ECF No. [269]. However,

the Court applied a variance/departure and sentenced Galaviz 180 months, a term of imprisonment

below the guideline range. In response to the instant motion, the Probation Office calculated

Galaviz’s revised total offense level as 35 and his criminal history category at I, in light of the

Amendment. Based on that calculation, the revised imprisonment range would be 168 to 210

months, a difference of 42 to 52 months from the original calculations. Prob. Mem., ECF No.

[302].

         Galaviz contests this calculation, arguing that his revised total offense level should be 33

and not 35. Specifically, Galaviz contends that this Court originally sentenced him to a term of

imprisonment of 180 months which was within the guideline range for a defendant with a total

offense level of 35 and a criminal history category of I, despite the fact that his offense level at

that time was calculated at 37. See Def.’s Opp’n to Prob. Mem. Galaviz argues that because his

original sentence fell within the guideline range for an offender with an offense level of 35, the

Court should now apply the two-level reduction to that and treat him as a defendant with an offense

level of 33. Id. As such, Galaviz argues that the range for his term of imprisonment under the

revised guideline calculation should be 135 to 168 months, rather than the 168 to 210 months

calculation provided by the Probation Office. Id. The Government agrees with the Probation

Office’s calculation as to Galaviz’s revised guideline range. Govt.’s Opp’n at 5.

                                                  9
       With certain exceptions, the Court is not authorized to reduce a defendant’s term of

imprisonment pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10 to a term that is less than

the lowest term of imprisonment within the revised guideline range. U.S.S.G. § 1B1.10(b)(2)(A).

Indeed, even when a defendant is originally sentenced to a term of imprisonment that is less than

the guideline range at the time of sentencing, the Court is still constrained by U.S.S.G. §

1B1.10(b)(2)(A) and may not sentence a defendant to a term of imprisonment below the lowest

end of the revised guideline range. See id. at § 1B1.10, cmt., n.3. Here, at Galaviz’s original

sentencing, he was deemed to have an offense level of 37 and a criminal history category of I. The

parties and the Probation Office agree that Galaviz is subject to a two-level reduction of his offense

level based on the Amendment 782. As such, the Court finds that it shall treat Galaviz as an

offender with a revised total offense level of 35 and a criminal history category of I. See Dillon,

560 U.S. at 831 (“The relevant policy statement instructs that a court proceeding under §

3582(c)(2) ‘shall substitute’ the amended Guidelines range for the initial range ‘and shall leave all

other guideline application decisions unaffected.’”). Galaviz has set forth no basis for the Court

to depart from this calculation. Accordingly, the relevant, revised guideline range applicable in

the instant action is 168 to 210 months of imprisonment.

       For the reasons described above, the Court finds that it may reduce Galaviz’s term of

imprisonment from 180 months to, at the least, 168 months based on the revised guideline range.

However, the Court merely has the discretion to implement such a reduction and is not required to

do so. As the Supreme Court explained:

       Indeed, even where a defendant is permitted to seek a reduction [pursuant to §
       3582], the district judge may conclude that a reduction would be inappropriate.
       District judges have a continuing professional commitment, based on scholarship
       and accumulated experience, to a consistent sentencing policy. They can rely on
       the frameworks they have devised to determine whether and to what extent a

                                                 10
       sentence reduction is warranted in any particular case. They may, when considering
       a § 3582(c)(2) motion, take into account a defendant’s decision to enter into an
       11(c)(1)(C) agreement. If the district court, based on its experience and informed
       judgment, concludes the agreement led to a more lenient sentence than would
       otherwise have been imposed, it can deny the motion, for the statute permits but
       does not require the court to reduce a sentence.


Freeman, 131 S. Ct. at 2694. Accordingly, the only issue remaining before the Court is whether

it should exercise its discretion to reduce Galaviz’s sentence from 180 months to a term of

imprisonment of not less than 168 months. Moreover, the Court has determined that it would

benefit from additional briefing from each party directly addressing this issue based on the relevant

factors that the Court must consider. See In re Sealed Case, 722 F.3d at 370 (“‘[W]hether, and to

what extent, a reduction . . . is warranted,’ U.S.S.G. § 1B1.10(b)(1), are decisions left to the

discretion of the district court, as guided by the policy statement and the sentencing factors listed

at 18 U.S.C. § 3553(a).”). As such, the parties shall file memorandums in aid of sentencing

explaining their position as to this issue. Upon review of the parties’ memorandums, the Court

shall determine how to proceed.

                                       III. CONCLUSION

       For the foregoing reasons, the Court finds Defendant Guadalupe Galaviz is eligible for a

reduction of his current sentence pursuant to 18 U.S.C. § 3582(c). Specifically, the Court has the

discretion to reduce Galaviz’s term of imprisonment from 180 months to a term of not less than

168 months. However, the Court has determined that it would benefit from the parties providing

memorandums in aid of sentencing to present their position as to whether the Court should exercise

its discretion to reduce Galaviz’s sentence. Accordingly, Galaviz’s [288] Motion for Modification

or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c) is HELD IN ABEYANCE pending the

Court’s determination as to how to proceed upon receipt of the parties’ memorandums in aid of

                                                 11
sentencing.

       An appropriate Order accompanies this Memorandum Opinion.



                                                   /s/
                                               COLLEEN KOLLAR-KOTELLY
                                               UNITED STATES DISTRICT JUDGE




                                          12
