United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MQMAN CHIEF UNITED STATES DISTRICT.
case comes before me on Defendant's Motion to Reduce
Sentence . For the following reasons, Defendant's
motion is DENIED.
5, 2011, Defendant Artemio Ramirez-Arroyo entered a guilty
plea to one count of conspiracy to distribute and possess
with intent to distribute 500 grams more of methamphetamine
and cocaine in violation of 21 U.S.C. §§ 841
(a)(1), 841 (b)(1)(A), 841 (b)(1)(C), and 846. The United
States recommended a sentence below the United States
Sentencing Guidelines (U.S.S.G.) range based on
Ramirez-Arroyo's limited educational background and the
desire to maintain sentencing consistency with his
codefendants. The plea agreement did not restrict
Ramirez-Arroyo's right to seek a variance under 18U.S.C.
§ 3553(a) factors. I accepted the recommended variance
under 3553(a) factors and sentenced Mr. Ramirez-Arroyo to 240
months, a downward variance from the guideline range of 360
months to life.
Mr. Ramirez-Arroyo was sentenced, the guideline applied to
him-U.S.S.G. § 2D1.1-was retroactively amended to reduce
the Drug Quantity Table by two levels. Following U.S.S.G.
Amendment 782, the guideline range that was applied to Mr.
Ramirez-Arroyo was amended 292 to 365 months. Mr.
Ramirez-Arroyo has since filed a motion seeking a two-level
reduction pursuant to 18 U.S.C. § 3582(c)(2) based on
Amendment 782 and a recent Supreme Court holding in
Hughes v. United States, 138 S.Ct. 1765 (2018).
parties agree about the guideline range used to sentence Mr.
Ramirez-Arroyo and what his reduced range would be under
Amendment 782. Mr. Ramirez-Arroyo believes Hughes
allow his sentence to be reduced, but the United States
argues that current Ninth Circuit precedent bars reduction.
See United States v. Padilla-Diaz, 862 F.3d 856, 858
(9th Cir. 2017). The question before me is whether
Hughes overruled Padilla-Diaz, or whether
the holdings are reconcilable and Padilla-Diaz
remains binding precedent.
of Appeal are bound by "higher intervening
authority" and should reject prior precedent as
effectively overruled if the intervening holding is
"clearly irreconcilable" with the previous holding.
United States v. Robertson, 875 F.3d 1281, 1291 (9th
Cir. 2017). If a court can apply '"prior circuit
precedent without running afoul of the intervening
authority' it must do so. "It is not enough for
there to be some tension between the intervening higher
authority and prior circuit precedent, or for the intervening
authority to cast doubt on the prior circuit
precedent.'" Id. (quoting Lair v.
Bullock, 697 F.3d 1200, 1207 (9th Civ. 2012)).
The same principles outlines above apply a fortiori to
§ 1B1.10(b), a 2011 Sentencing Commission Policy
Statement, states that courts "shall determine the
amended guideline range that would have been applicable to
the defendant if the amendment(s) to the guidelines . . . had
been effect at the time the defendant was sentenced,"
but that a court "shall not reduce a defendant's
term of imprisonment under 18 U.S.C. § 3582(c)(2)... to
a term that is less than the minimum of the amended guideline
range." U.S.S.G. § 1B1.10(b)(1); (2)(A).
Ninth Circuit upheld the validity and application of §
IB 1.10(b) in United States v. Padilla-Diaz, 862
F.3d 856, 858 (9th Cir. 2017). Three prisoners challenged the
validity of § IB 1.10(b) preventing them from receiving
retroactively reduced sentences based upon Amendment 782.
Padilla-Diaz, 862 F.3d at 859. Three district courts
had denied the respective defendants' motions because
their sentences were already at or below the low end of the
amended guideline ranges. Id. The Ninth
Circuit-affirming the district courts' decisions-held
that § 1B1.10(b) did not violate equal protection or due
process rights and did not conflict with statutes stating
that the Sentencing Commission should avoid disparate
sentences. Id. at 863.
11(c)(1)(C) allows the government to agree to a specific
sentence or range in a defendant's plea, and if the court
accepts the agreement the court is bound by the
recommendation. Fed.R.Civ.P. 11(c)(1)(C). This is known as a
Type-C agreement. Hughes, 138 S.Ct. at 1773. 18
U.S.C. § 3582(c)(2) allows a court to modify a
defendant's sentence when that defendant was sentenced
"based on a sentencing range that has subsequently been
lowered ... if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission."
Previously, the Supreme Court issued a plurality opinion on
the question of whether sentences pursuant to plea agreements
were "based on" the guidelines and therefore
amendable under § 3582(c)(2). See Freeman v. United
States, 564 U.S. 522 (2011).
Hughes, the Supreme Court revisited Freeman
and held that an inmate sentenced pursuant to a Type-C plea
bargain was eligible for a sentence reduction if the
sentencing guidelines changed subsequent to Ms sentencing.
Hughes, 138 S.Ct. at 1778. The Government in
Hughes argued that no guideline provisions are
applied when a court accepts a Type-C plea because the court
is immediately bound upon acceptance. Therefore, allowing
amendment of Type-C pleas would be inconsistent with §
IB 1.10(b). The Court disagreed and found that a sentence was
"based on" a Guidelines range if the range was a
basis for the court's exercise of discretion in imposing
a sentence, and therefore that Mr. Hughes's sentence
could be amended. Id. at 1775.
Ramirez-Arroyo argues that Hughes overturns
Padilla-Diaz. The United States opposes any
amendment to Mr. Ramirez-Arroyo's sentence, arguing that
Mr. Ramirez-Arroyo is not eligible for a reduction because
the original sentence of 240 months he received is already
lower than the 292-month minimum for the amended Guideline
range, and therefore barred by § IB 1.10(b). The United