United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
On April 22, 2015, Petitioner Gilbert Brito filed a Motion to Reduce Sentence . The request was made pursuant to 18 U.S.C. § 3528(c)(2), United States Sentencing Guideline § 1B1.10, and Amendment 782 to the United States Sentencing Guidelines. While the government does not oppose a sentence reduction to 70 months, the low end of Defendant's new guideline range, it does oppose an additional 4-month reduction that Defendant seeks. Defendant argues that he is entitled to an additional 4-month reduction because the sentencing judge made a decision to run his federal sentence concurrently with a previously discharged 4-month state sentence. Defendant argues that this Court is barred from altering the concurrency decision, and therefore, must grant an additional 4-month reduction. The government argues that no such concurrency determination was ever made because the sentencing court lacked any power to make such a determination.
In 2012, Mr. Brito was convicted of possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i). CR 24. Pursuant to a plea agreement, the parties agreed to recommend a sentence of 80 months' imprisonment, a slight downward variance from the guideline range of 84 to 105 months, utilizing factors set out in 18 U.S.C. § 3553(a). CR 18 ¶11. Prior to sentencing, Mr. Brito submitted a sentencing letter indicating that, after being arrested for the present offense, he received a 120-day jail sanction for violating post-prison supervision imposed on a prior state conviction. Def. Sent. Ltr. at 1 n.1. This sanction had been fully served prior to the sentencing in this case. Defendant asked the Court to "impose an adjusted concurrent sentence ( see U.S.S.G. §5G1.3 & app n.3) of 76 months to effectively afford Mr. Brito with credit for all of the time in custody since the instant arrest." Id. The government did not oppose that request. Id.
At sentencing, the Court adopted the following guideline determinations from the Presentence Report:
Base Offense Level (between 100 and 400 grams heroin) 26
Total Offense Level 25
Criminal History Category IV
Guideline Range 84 to 105 months
CR 25 at 2. The Court imposed the requested sentence of 76 months' imprisonment: 84 months minus an 8-month adjustment as a result the 4-month variance the government agreed to and the 4-month "concurrency" reduction sought by Defendant. The judgment does not specify whether the second 4-month adjustment was due to a concurrency determination or was simply an additional 4-month variance aimed at achieving the same functional result of a concurrent sentence.
On November 1, 2014, Sentencing Guidelines Amendment 782 went into effect, retroactively reducing by two levels most of the base offense levels in the U.S.S.G. § 2D1.1 Drug Quantity Table. Amendment 782 applies retroactively, U.S.S.G. § 1B1.10(d), and the parties agree that it has reduced Mr. Brito's guideline range by two levels as follows:
Amended Base Offense Level 24
Amended Total Offense ...