United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE OR MODIFY
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
Alberto Flores was convicted of one count of conspiracy to
distribute with intent to import, and to import
pseudoephedrine with reasonable cause to believe the chemical
would be used to manufacture a controlled substance, in
violation of 21 U.S.C. §§ 959(a)(1), 960(d)(3) and
963. In 2011, Chief Judge Gerald E. Rosen sentenced
Petitioner to a term of 186 months of imprisonment,
significantly below the then-applicable United States
Sentencing Guidelines range of 262 to 327
months.Petitioner now moves the court to vacate or
modify his sentence under 18 U.S.C. § 3582(c)(2) on the
basis that his offense level was calculated according to a
provision of the Sentencing Guidelines that has since been
amended and made retroactive by the United States Sentencing
Commission. But because the revisions to the Guidelines do
not actually lower Petitioner's sentencing range, he is
not entitled to resentencing under 18 U.S.C. §
bench trial, Petitioner Alberto Flores was convicted of one
count of conspiracy to distribute with intent to import, and
to import pseudoephedrine with reasonable cause to believe
the chemical would be used to manufacture a controlled
substance. 21 U.S.C. §§ 959(a)(1), 960(d)(3), 963.
The amount of pseudoephedrine at issue was five million
pills, which, according to the government, equals 300
kilograms or more of pseudoephedrine. ECF No. 186 PageID.964
(Court's Findings of Facts and Conclusions of Law); ECF
No. 199 PageID.1155-57 (Sentencing Tr.); ECF No. 257
PageID.1522 (Gov't Br.). Because the crime involved more
than three kilograms of pseudoephedrine, at the time of
sentencing Petitioner's base offense level was calculated
at 38, the highest-possible base offense level for crimes
involving pseudoephedrine. ECF No. 257 PageID.1522-34.
Petitioner's criminal history category was designated as
II. ECF No. 252 PageID.1490.
Guidelines range, as calculated by the United States
Probation Department and acknowledged by defense counsel and
the Court at the time of sentencing, was 262 to 327 months.
ECF No. 189 PageID.996 (Flores Sentencing Mem.); ECF No. 199
PageID.1152, 1155 (Sent. Tr.). But 21 U.S.C. § 960(b)(3)
provided for a maximum sentence of no more than 20 years, or
240 months. See Id. Accordingly, Petitioner's
maximum sentence was capped at 240 months. Finding that
“Mr. Flores was not a leader, not an organizer, not a
planner in this particular case, ” and after
considering all the sentencing factors contained in 18 U.S.C.
§ 3553(a), Judge Rosen imposed a below-Guidelines
sentence of 186 months. ECF No. 199 (Sent. Tr.) at
PageID.1152 and generally; ECF No. 192 PageID.1014
defendant is eligible for resentencing under 18 U.S.C. §
3582(c)(2) if he was: (1) “sentenced to a term of
imprisonment based on a sentencing range that has
subsequently been lowered by the [United States] Sentencing
Commission”; and (2) “such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.” United States v.
Braden, 643 Fed.Appx. 531, 532 (6th Cir. 2016) (citing
United States v. Riley, 726 F.3d 756, 758 (6th Cir.
2013)). In most instances, if a sentencing range is lowered,
it is because the Sentencing Commission has amended the
Guidelines. Id. at 532 n.1. To meet the requirements
for resentencing established by 18 U.S.C. § 382(c)(2),
the Sixth Circuit has explained that “a guidelines
amendment must have the effect of lowering the
defendant's applicable guideline range.”
Riley, 726 F.3d at 758 (quoting United States v.
Hameed, 614 F.3d 259, 269 (6th Cir. 2010)). That
applicable range is “the range that applies before the
sentencing court grants any discretionary departures.”
United States v. Pembrook, 609 F.3d 381, 387 (6th
782, submitted to Congress by the Sentencing Commission and
made effective as of November 1, 2014, reduced the base
offense level for many drug trafficking offenses.
Braden, 643 Fed.Appx. at 533 n.2. Specifically, the
amendment changed the Drug Quantity Table at § 2D1.1 of
the Guidelines to reduce the base offense level for most drug
trafficking crimes by two levels. United States v.
Burton, No. 06-20465, 2018 WL 1930100, *1 (E.D. Mich.
Apr. 24, 2018). Amendment 782 was made retroactive by the
Sentencing Commission in November 2015. Id.
Petitioner's case, a sentence reduction is not warranted
because Amendment 782 did not in fact lower his Guidelines
range. Petitioner argues that, under the revised Sentencing
Guidelines, his new base offense level should be calculated
as 33, rather than 38. ECF No. 252 PageID.1490 (Pet.'s
Br.). Accordingly, he asserts that his Guidelines range would
now be 151 to 188 months, as opposed to 188 to 235 months,
which he describes as the previously calculated Guidelines
initial matter, Petitioner is incorrect in stating that his
Guidelines range was initially calculated to be 188 to 235
months. As defense counsel acknowledged at the time of
sentencing, Petitioner's Guidelines range was calculated
as 262 to 327 months. See ECF No. 189 PageID.996
(Flores Sentencing Mem.); ECF No. 199 PageID.1152, 1155
(Sent. Tr.). More critically, although Petitioner is correct
that his Guidelines range would be 151 to 188 months
if his base offense level were now 33 (rather than
38), his assertion that Amendment 782 lowered his base
offense level from 38 to 33 is erroneous.
Petitioner's crime involved 300 or more kilograms of
pseudoephedrine, changes to the Drug Quantity Table brought
about by Amendment 782 do not alter Petitioner's base
offense level. See ECF No. 257 PageID.1527
(explaining that the 300 kilogram figure is uncontested).
According to the revised Drug Quantity Table, an offense that
involves 9 or more kilograms of pseudoephedrine warrants a
base offense level of 38, which is the highest possible base
offense level for crimes of unlawfully distributing,
importing, exporting, or possessing a listed chemical.
See U.S. Sentencing Guidelines Manual §
2D1.11(d) (U.S. Sentencing Comm'n 2018). Under the
Guidelines version in effect at the time of Petitioner's
sentencing, the Drug Quantity Table contemplated a maximum
amount of 3 kilograms of pseudoephedrine for his crime.
See U.S. Sentencing Guidelines Manual §
2D1.11(d) (U.S. Sentencing Comm'n 2011). And for an
offense involving 3 kilograms or more of pseudoephedrine, the
2011 Guidelines identified a base offense level of 38.
Id. Because it is undisputed that Petitioner's
crime of conviction involved more than 9 kilograms of
pseudoephedrine, there is no difference between the base
offense level calculated according to the 2011 Guidelines and
that which applies under the present Guidelines as amended by
Amendment 782. Under either set of Guidelines,
Petitioner's base offense level is 38.
Petitioner acknowledges that his Criminal History Category is
II. ECF No. 252 PageID.1490 (Pet.'s Mot.); ECF No. 189
PageID.997. Accordingly, under the most recent
Guidelines' Sentencing Table, his sentencing range,
because he has a Criminal History Category of II and base
offense level of 38, would be 262 to 327 months. See
U.S. Sentencing Guidelines Manual Ch. 5 P5. A (U.S.
Sentencing Comm'n 2018). Likewise, under the 2011
Guidelines, Petitioner's sentencing range was 262 to 327
months. See U.S. Sentencing Guidelines Manual Ch. 5
P5. A (U.S. Sentencing Comm'n 2011).
18 U.S.C. § 3582(c)(2) serves as a basis for sentence
reduction only “in 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, ” Petitioner is not entitled to
resentencing based on Amendment 782. In Petitioner's
case, the Amendment did not operate to lower his applicable
sentencing range and he is therefore not entitled to a
reduction in his sentence under § 3582(c)(2). See
Snow, 634 Fed.Appx. at 573 (citing United States v.
Webb, 760 F.3d 513, 518-19 (6th Cir. 2014); 18 U.S.C.
Petitioner's actual sentence of 186 months was
substantially below both the current and then-applicable
Guidelines range of 262 to 327 months. The Sixth Circuit,
reading § 3582(c)(2) together with U.S.S.G. §
1B1.10(b)(2), which limits the extent of sentencing reduction
under § 3582(c)(2), has held that courts generally may
not reduce a defendant's sentence to a term below the
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