United States District Court, D. Oregon
OPINION AND ORDER
Malcolm F. Marsh, United States District Judge.
an inmate confined at Tucson USP, moves to reduce his
sentence pursuant to § 3582(c), or to vacate his
sentence or conviction pursuant to 28 U.S.C. §§
2241 and 2255. For the reasons set forth below,
Defendant's Motion is dismissed for lack of jurisdiction.
26, 1991, a jury convicted Defendant of Conspiracy to Possess
with Intent to Distribute Heroin, Illegal Re-entry, Aiding in
the Production of a False Driver's License, Traveling
Interstate Commerce with Intent to Distribute Heroin (two
counts), Aiding in the Possession with Intent to Distribute
Heroin (six counts), Possession with Intent to Distribute
Heroin, Use of a Communication Device in the Commission of a
Felony Conspiracy (seven counts), Attempted Money Laundering,
Aiding the Attempted Travel in Interstate Commerce to Carry
on an Unlawful Activity, Aiding in the Attempted Laundering
of Monetary Instruments, and Attempting to Distribute Heroin.
Verdict (ECF No. 422).
November 6, 1991, this Court sentenced Defendant to life
imprisonment on Count One (Conspiracy to Possess with Intent
to Distribute Heroin) and to a forty-eight month term of
imprisonment on each remaining count, to be served
concurrently with the sentence imposed on Count One. J. (ECF
No. 531). This Court's sentencing calculation was
premised on a base offense level of 40 and a criminal history
category IV. Tr. of Sentencing (ECF No. 603) at 3996-97;
Findings of Fact (ECF No. 532) at 3-4; Def's Exs. (ECF
No. 866), Ex. M at 19-21. This Court imposed a two-level
enhancement for weapons found related to the drug conspiracy,
a four-level enhancement for Defendant's role as a leader
of a criminal activity with five or more participants, and a
two-level enhancement for obstruction of justice, resulting
in a total offense level of 48. Tr. of Sentencing at 3997-99;
Findings of Fact at 3-4. With regard to the sentence
enhancement for obstruction of justice, this Court stated:
Mr. Orantes, I feel did commit untruthful testimony during
the trial, particularly in putting the government to the
extensive proof of negating his spurious allegations that the
government had in some way been involved with the Mexican
authorities in his arrest and alleged treatment by the
Mexican authorities. And therefore, I am enhancing Mr.
Orantes two levels.
Sentencing at 3997. Based on Defendant's criminal history
category of IV, the resulting sentencing guideline range was
life. Tr. of Sentencing at 3999. The Ninth Circuit affirmed
Defendant's conviction and sentence. United States v.
Orantes-Arriaga, 998 F.2d 1491 (9th Cir. 1993).
April 9, 1997, Defendant filed his first § 2255 motion
challenging the legality of both his conviction and sentence.
Mot. to Vacate (ECF No. 712). This Court denied
Defendant's Motion and the Ninth Circuit affirmed on
appeal. Order (ECF No. 793), J. and Mandate (ECF No. 809).
January 11, 2006, Defendant filed a Motion for Modification
of Sentence pursuant to 18 U.S.C. §§ 3582(c) and
Sentencing Guideline Amendment 505. Def.'s Mot. for
Modification of Sentence (ECF No. 820) at 1. Sentencing
Guideline Amendment 505 reduced the highest base offense
level for drug offenses from 42 to 38. In his Motion,
Defendant conceded that if his sentencing guideline range was
recalculated under Amendment 505, he would have a total
offense level of 46 which would still result in a sentence
guideline range of life. Def.'s Mot. for Modification of
21, 2006, this Court exercised its discretion to deny
Defendant's Motion for Modification. Op. and Order (ECF
No. 820) at 4. On August 1, 2007, the Ninth Circuit vacated
this Court's decision and remanded with instructions to
dismiss Defendant's Motion for lack of
jurisdiction. The Court explained:
Even though Amendment 505 retroactively lowered the offense
level that applied to Orantes, the sentencing range that
would have applied to him-automatic life
imprisonment-remained the same. Therefore, § 3582(c)(2),
which creates jurisdiction where the "sentencing
range" has been lowered, did not confer jurisdiction on
the district court to resentence in this case. See
also U.S.S.G. § IB 1.10(a) (tying resentencing to
the "guideline range applicable to [the]
United States v. Orantes-Arriaga, 244 F.App'x
151, 152 (9th Cir. 2007). In the instant proceeding,
Defendant again seeks relief pursuant to § 3582(c)(2)
and, in the alternative, pursuant to 28 U.S.C.
§§2241 and 2255.
government's investigation of Defendant's drug
trafficking began in 1986 and extended through 1990 as set
forth by the Ninth Circuit in United States v.
Arias-Villanueva,998 F.2d 1491 (9th Cir. 1993). On
November 2, 1990, Defendant was arrested by U.S. officials
after accepting ...