/ Nl

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA,

V' Criminal No. 12-cr-125-17 (CKK)
JOSE AMAYA-ORTIZ,

Defendant.

 

 

MEMORANDUM OPINION
(November 3, 2017)

Presently before the Court is Defendant Jose Amaya-Ortiz’ s pro se [356] Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, which
the Government opposes. Defendant Jose Amaya-Ortiz (hereinafter “Defendant” or “Mr. Amaya-
Ortiz”) requests that the Court modify or reduce his sentence based on a 2015 amendment to the
United States Sentencing Guidelines. Because Mr. Amaya-Ortiz is not challenging the legality of
his sentence, the Court shall construe Defendant’s Motion as a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582(0)(2). Upon consideration of the pleadings,l the relevant legal
authorities, and the record as a whole, the Court finds that Mr. Amaya-Ortiz is ineligible for a
reduction of his sentence pursuant to section 3582(0)(2). Accordingly, Mr. Amaya-Ortiz’s Motion

is DENIED for the reasons described herein.

 

1 Defendant’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in F ederal Custody and Memorandum of Law in Support thereof (collectively, the
Def.’s Mot.”), ECF No. 356; Governrnent’s Opposition to Defendant’s l@ S_e Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (“Govt.’s
Opp’n”), ECF No. 360; Government’s Statement of F acts in Support of Defendant’s Plea of Guilty,
ECF No. 233; Plea Agreement, ECF No. 234; Judgment in a Criminal Case, ECF No. 266;
Unopposed Motion to Reduce Sentence, ECF No. 317; Order Regarding Motion for Sentence
Reduction Pursuant to 18 U.S.C. § 3582(c)(2), ECF No. 354.

I. BACKGROUND

On November 14, 2013, Defendant entered into a Plea Agreement, pursuant to Federal
Rule of Criminal Procedure 11(c)(1)(C), whereby he pled guilty to Count One of a Superseding
Indictment charging him with Conspiracy to Distribute and Possess with Intent to Distribute Five
Kilograms or More of Cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). The
parties agreed on a sentence of 150 months of incarceration, to be followed by 60 months of
supervised release The parties agreed further that pursuant to the Sentencing Guidelines: (1) the
Defendant’s Base Offense Level was 36 under U.S.S.G. § 2Dl.1; (2) Defendant was subject to a
two~level aggravating role adjustment under U.S.S.G. § 3Bl.l(c) because he was a manager or
supervisor of criminal activity; and (3) Defendant should receive a three-level reduction under
U.S.S.G. § 3E1.1 for accepting responsibility Defendants’ applicable Sentencing Guidelines
offense level was 35, which corresponded with the applicable Guidelines range of 168 months to
210 months, because his criminal history category was I. Accordingly, Defendant’s sentence of
150 months, which was accepted by the CouIt, was below the low end of the Guidelines range.

On July 2, 2015, Defendant flled an unopposed motion requesting a reduction of his
sentence pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the Sentencing
Guidelines which reduced Defendant’s base level offense by two points. See U.S.S.G. Supp. App.
C, Amdt. 782 (Nov. 1, 2014). Amendment 782 lowered the bottom end of Defendant’s applicable
Guidelines range from 168 months to 135 months, and accordingly, Defendant requested that the
Court employ its discretion to reduce his sentence from 150 months to 135 months of
imprisonment On November 3, 2016, the Court granted Defendant’s request and reduced his

sentence to 135 months

On November 3, 2016, Defendant filed the instant Motion, pursuant to 28 U.S.C. § 225 5,
in which he asserts that he is entitled to a further sentence reduction under Amendment 794 to the
Sentencing Guidelines, whereby the United States Sentencing Commission amended the
commentary to U.S.S.G. § 3B1.2, to make a sentencing adjustment available for a defendant “who
plays a part in committing the offense that makes him substantially less culpable than the average
participant in the criminal activity.” U.S.S.G. Supp. App. C, Amdt. 794 (Nov. 1, 2015). More
specifically, Defendant asserts that he is entitled to a “2, 3, or 4 level[ ]” reduction in his sentence
and he requests an “adjustrnent[ ] to his term[ ] of imprisonment according to the tenets of
Amendment 794 giving consideration to the expanded criteria, and addressing his involvement in
the conspiracy.”2 Def.’s Mot. at 16.

Since the Defendant is proceeding pro se, his motion will be liberally construed to conform
to the nature of the relief he seeks See, e.g., United States v. Arring10n, 763 F.3d 17, 22 (D.C. Cir.
2014) (noting a court’s obligation to construe pro se filings liberally); Williams v. Gonzalez, 567
F_ Supp. 2d 148, 149 (D.D.C. 2008) (“The Court is not bound by a pro se litigant’s characterization
of his cause of action. Rather a court must determine the proper characterization of a filing by the
nature of the relief sought.”); McLean v. United States, Criminal Action No. 90-318 (TFH), 2006
WL 543999, at *1 (D.D.C. Mar. 3, 2006) (“A court must determine the proper characterization of

a motion by the nature of the relief sought.”) (citation omitted)). In this case, Defendant seeks

 

2 The commentary to § 3B1.2 now includes the following non-exhaustive list of factors relevant
to a defendant’s eligibility for a mitigating role adjustment: (1) the degree that a defendant
understood the scope and structure of the criminal activity; (2) the degree that a defendant
participated in the planning or organizing of the criminal activity; (3) the degree that a defendant
exercised or influenced decision-making authority; (4) the nature and extent of a defendant’s
participation in the commission of criminal activity, including acts performed and responsibility
and discretion for the same; and (5) the degree that a defendant stood to benefit from the criminal
activity. See U.S.S.G. § 3B1.2 commentary

3

reconsideration of` his sentence in light of an intervening change to the Sentencing Guidelines, as
opposed to challenging the legality of his sentence. Accordingly, Defendant’s motion should be
construed as a motion to modify his sentence under 18 U. S.C. Section 3582 as opposed to a motion
to vacate, set aside or correct his sentence under 28 U.S.C. Section 2255. Accord United States v
Morales-Perez, 2016 WL 6426394 (S.D.N.Y. Oct. 27, 2016) (construing § 2255 petition as a
motion to modify sentence under § 3582 where petitioner sought a sentence reduction pursuant to
Amendment 794).3
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).
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)_ Only the third circumstance is at issue in this case, as
explained in more detail below:

[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 . . . upon motion . ., 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.

 

3 If Defendant’s Motion was treated as a motion pursuant to Section 2255, it would be time-
barred because Defendant was sentenced in this case on February 7, 2014, did not appeal, and
did not file the instant motion until November 3, 2016, which is more than one year after his
conviction became final See 28 U.S.C. § 2255(f).

4

18 U.S.C. § 3582(c)(2).

Does Amendment 794 apply retroactivelv?

A court’s power pursuant to Section 3582(c) depends on the Commission’s decision to
amend the Guidelines as well as the decision to make the amendment retroactive Dillon, 560 U. S.
at 826. “If the Commission reduces the term of imprisonment recommended in the guidelines
applicable to a particular offense or category of offenses, it shall specify in what circumstances
and by what amount the sentences of prisoners serving terms of imprisonment for the offense may
be reduced.” 28 U.S.C. § 994(u). Defendant asserts that “Amendment 794 applies retroactively
because it is a “clarifying” as opposed to a “substantive” amendment.” Def.’s Mot. at 16.
Defendant provides no further explanation nor any authority for his conclusion that Amendment
794 is clarifying and thus, applies retroactively.4

The D.C. Circuit has not yet ruled on this issue of whether Amendment 794 is a clarifying
amendment or a substantive change In a case discussing whether another amendment to the

Sentencing Guidelines was retroactive, the Court of Appeals noted that “the Supreme Court [has]

 

4 In United States v. Sanchez-Vz`llarreal, the Court of Appeals for the Fi&h Circuit considered
whether Amendment 794 is clarifying the guideline, noting that the court had not yet determined
that issue, but that “[t]hree other circuit courts _ the Sixth, the Ninth, and the Eleventh _ ha[d]
recently held that Amendment 794 is a clarifying amendment and thus retroactively applicable”
while the First Circuit declined to decide the issue 857 F.3d 714, 720 (citations omitted). The
Sanchez- Villarreal court ultimately decided that Amendment 794 was clarifying, after weighing
the Hujj” factors and taking into account the “unanimity of circuit courts that have ruled on this
issue and the Government’s concession that the amendment [was] clarifying.” Id at 721.
Factors considered in determining whether an amendment to the Guidelines is clarifying or
substantive include: 1) whether the Commission expressly characterized the amendment as
clarifying; (2) whether the amendment is intended to address a circuit split; (3) whether the
amendment is listed in Section 1B1.10 (d); and (4) whether the amendment alters the language of
the commentary or the language of the Guideline. See United States v. Hujf 370 F.3d 454, 465-
67 (5th Cir. 2004).

5

held that the policy statement in § 1B1.10 governs whether changes to the Guidelines may be given
retroactive effect.” United States v. Williams, 495 Fed. Appx 96, 97 (D.C. Cir. 2013) (citing
Dillon, 130 S. Ct. at 2691). While the policy statement lists amendments which were intended by
the Sentencing Commission to apply retroactively, Amendment 794 is not included among them.
See U.S.S.G. § 1B1.10(d). Accordingly, because Defendant has proffered no argument or
authority regarding the retroactive application of Amendment 794, Defendant’s claim could be
denied on grounds that the Court is without authority under Section 3582(0)(2) to reduce the
Defendant’s sentence pursuant to this Amendment. See, e.g., United States v. Camacho-
Mala'onala'o, Cases Nos. 07-cr-99, l6-cv-3 l l l, 2016 WL 6681520, at *2 n.3 (M.D. Fla. Nov. 14,
2016) (declining to apply the finding of retroactivity in Quintero-Leyva insofar as that case held
that Amendment 794 applied retroactively to direct appeals, and this case did not involve a direct
appeal, and liarther, because the Amendment was not listed in Section 1B1.10(d)); United States
v. Wl'lliams, Criminal No. 12-52, 2016 WL 6471231, at *2 (S.D. Miss. Nov. l, 2016) (“If an
amendment is not listed, a retroactive sentence reduction is not authorized”); Vergara v. United
States, Case Nos. 16-CV-394, 14-CR-222, 2016 WL 5717843, at *3 (W.D. Tex. Sept. 30, 2016)
(declining to apply Amendment 794 retroactively because it was not listed as eligible for
retroactive effect in the Sentencing Guidelines); Logan v.` United States, Case No. 5: 16 CV 1461,
2016 WL 5338060, at *5 (N.D. Ohio Sept. 23, 2016) (finding that the Commission’s retroactivity
determinations control and the Commission has the responsibility to specify which amendments
apply retroactively). The Court’s inquiry need not end here however, if the Court accepts that
Amendment 794 could be applied retroactively See generally United States v. Gomez-Valle, 828
F.3d 324 (Fifth Circuit 2016) (concluding that it was not necessary to resolve whether Amendment
794 was a substantive change or only clarifying because even if it was applied retroactively, it

6

would not affect the defendant’s sentence).

If Amendment 794 applied retroactivelv, would Defendant be entitled to relief under

§3582(c)(21?

Assuming arguendo that Amendment 794 does apply retroactively, the Defendant could
be a beneficiary under Section 3B1.2 of the Sentencing Guidelines, which provides for a two to
four level downward adjustment to a defendant’s offense level, if the defendant was a “minimal”
or “minor” participant in the criminal activity U.S.S.G. § 3B1.2 In the instant case, Defendant
did not receive a mitigating role reduction to his offense level when he was sentenced in 2014;
instead, the Defendant and the Government agreed that his offense level should be increased two
levels under Section 3B1.l of the Sentencing Guidelines because of his aggravating role as a
manager or supervisor of criminal activity See Plea Agreement, ECF No. 234, at 4. See U.S.S.G.
§ 3B1.1 (“Aggravating Role”).5 The Government argues that “[e]ven assuming . . . that the
aggravating role enhancement that defendant received would not necessarily preclude him from
also receiving a mitigating role reduction, defendant’s role as a manager or supervisor of criminal
activity weighs heavily against his eligibility for an adjustment intended for ‘low-level offenders’
such as ‘drug couriers and mules.”’6 Govt.’s Opp’n at 8; see U.S.S.G. Supp. App. C, Amdt. 794.

An examination of the record in this case indicates that Defendant played more than a
minimal or minor role in the criminal activity, and his role was significant relative to his co-
conspirators insofar as he “supplied large quantities of cocaine to [the] conspiracy, and was

responsible for overseeing the shipment of at least fifty kilograms of cocaine from Texas to the

 

5This Section has not been amended by the United States Sentencing Commission.
6 The Government indicates that the circuits appear to be split as to whether the same defendant
could in theory receive both an aggravating role enhancement and a mitigating role reduction,
and fiirther, that the D.C. Circuit has not weighed in on this issue Govt.’s Opp’n at 8 n,6 (string
citing cases).

7

Washington, D.C. area.” Nov. 14, 2013 Govt. Stmt. of Facts in Support of Def.’s Plea of Guilty,
ECF No. 233, at 4. Defendant supervised at least five shipments of cocaine during the period
between August 2011 and May 23, 2012. Ia'. at 6. Defendant supervised the drug couriers during
the course of these trips to Texas, and he made the arrangements to procure the cocaine, took
possession of the vehicle so the cocaine could be loaded into it, and alerted the group as to the
planned return to Washington, D.C. Id. Accordingly, the Court finds that, even if Amendment
794 was retroactive and Defendant’s aggravating role enhancement did not preclude him from also
receiving a mitigating role reduction, Defendant’s role as a major supplier of cocaine to the
conspiracy, a supervisor of couriers, and a manager of shipments defeats his contention that he
was a low-level participant in the conspiracy who would be eligible for a mitigating role reduction

I]I. CONCLUSION

Defendant lose Amaya-Ortiz is ineligible for a sentence reduction because: (1)
Amendment 794 to U.S.S.G. § 3B1.2 is not retroactively applicable to collateral proceedings
pursuant to 18 U.S.C. § 3582(c)(2); and (2) even if Amendment 794 was retroactive, Defendant’s
role as a manager or supervisor of the criminal activity precludes him from claiming entitlement
to any benefit available to low-level participants in such criminal activity Accordingly,
Defendant’s motion [356] shall be denied.

An appropriate Order accompanies this Memorandum Opinion.

: 2 §§ § Z; 2
DATED; November 3, 2017 ~
COLLEEN KOL AR-K T LY

UN]TED STATES DISTRICT JUDGE

