United States District Court

for the

Southern District of Florida

United States of America, 

Plaintiff

v.

Rigoberto Guerra, Defendant.

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Criminal Case No. 22-20429-CR-Scola

Order Granting Motion for Sentence Reduction

This matter is before the Court on the Defendant Rigoberto Guerra’s

motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and for 

appointment of counsel. (Mot., ECF No. 263.) The Government has responded.

(ECF No. 264.) Guerra has not replied, and the time to do so has passed. After 

careful consideration of the parties’ written submissions, the record, and the 

legal authorities, the Court grants the motion for reduction of sentence, but 

denies appointment of counsel. (Mot., ECF No. 263.)

1. Background 

On May 1, 2023, the Defendant Rigoberto Guerra was sentenced to a term 

of imprisonment of 47 months after pleading guilty to one count of possession 

with intent to distribute fifty grams or more of methamphetamine in violation of 

21 U.S.C. § 841(b)(1)(A)(viii). (ECF Nos. 82, 83, 158, 159.) The Sentencing 

Guidelines range was 57 to 71 months of imprisonment based on an offense 

level of 25 and a criminal history category of I. 

Since Guerra’s sentencing, the United States Sentencing Commission 

issued a sentencing adjustment for certain zero-point offenders (“Amendment 

821”), which provides, in relevant part, for “a decrease of two levels from the 

offense level . . . for offenders who did not receive any criminal history points . . . 

and whose instant offense did not involve specified aggravating factors.” Guerra

now seeks retroactive application of Amendment 821 to the Court’s judgment 

sentencing him to 47 months in prison. 

2. Legal Standard 

“[A] motion to modify an otherwise final judgment pursuant to § 3582(c)(2) 

is a limited and narrow exception to the rule that final judgments are not to be 

modified.” United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. 2003) 

(cleaned up). Specifically, § 3582(c)(2) provides:

[I]n the case of a defendant who has been sentenced to a term of 

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imprisonment based on a sentencing range that has subsequently 

been lowered by the Sentencing Commission . . . , 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.

18 U.S.C. § 3582 (emphasis added). Thus, under § 3582(c)(2), the Court must 

undertake a two-step process to determine whether a final sentence should be 

modified based on a sentencing range that has been lowered by the Sentencing 

Commission. 

First, the Court must determine if a retroactive amendment to the 

Sentencing Guidelines indeed lowered a defendant’s guidelines range and 

whether a reduction is consistent with the applicable policy statements. Second, 

the Court must consider the § 3553(a) factors to determine if it will exercise its 

discretion to reduce that defendant’s sentence.

Among other things, the Sentencing Commission policy statement 

applicable here provides that a court “shall not reduce the 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)(2)(A). In 

addition, although Amendment 821 went into effect on November 1, 2023, the 

policy statement “delays the effective date of orders reducing a defendant’s term 

of imprisonment to a date no earlier than February 1, 2024.” U.S.S.G. § 1B1.10 

cmt. n. 7. In other words, if a defendant is scheduled for release before February 

1, 2024, he is not entitled to relief under Amendment 821.

Finally, the § 3553(a) factors are: (1) the nature and circumstances of the 

offense and the history and characteristics of the defendant; (2) the need for the 

sentence imposed to reflect the seriousness of the offense, promote respect for 

the law, provide just punishment for the offense, afford adequate deterrence to 

criminal conduct, protect the public from further crimes of the defendant, and 

provide the defendant with needed educational or vocational training, medical 

care, or other correctional treatment in the most effective manner; (3) the kinds 

of sentences available; (4) the applicable sentencing guidelines range; (5) any 

pertinent policy statement; (6) the need to avoid unwarranted sentence 

disparities among defendants with similar records who have been found guilty of 

similar conduct; and (7) the need to provide restitution to any victims of the 

offense. See 18 U.S.C. § 3553(a).

3. Analysis 

A. Guerra is entitled to a sentence reduction.

As noted, the retroactive amendment that Guerra invokes here is 

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Amendment 821—the adjustment for certain zero-point offenders. See U.S.S.G. § 

4C1.1. Pursuant to Amendment 821, a defendant is eligible for a two-level 

reduction in his offense level, if he meets all the following criteria:

(1) the defendant did not receive any criminal history points from 

Chapter Four, Part A;

(2) the defendant did not receive an adjustment under §3A1.4 

(Terrorism);

(3) the defendant did not use violence or credible threats of 

violence in connection with the offense;

(4) the offense did not result in death or serious bodily injury;

(5) the instant offense of conviction is not a sex offense;

(6) the defendant did not personally cause substantial financial 

hardship;

(7) the defendant did not possess, receive, purchase, transport, 

transfer, sell, or otherwise dispose of a firearm or other dangerous 

weapon (or induce another participant to do so) in connection with 

the offense;

(8) the instant offense of conviction is not covered by §2H1.1 

(Offenses Involving Individual Rights);

(9) the defendant did not receive an adjustment under §3A1.1 

(Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious 

Human Rights Offense); and

(10) the defendant did not receive an adjustment under §3B1.1 

(Aggravating Role) and was not engaged in a continuing criminal 

enterprise, as defined in 21 U.S.C. § 848[.] 

See id. 

Here, an analysis of Guerra’s case reveals that he is eligible for a sentence 

reduction pursuant to Amendment 821. Guerra qualifies for the adjustment for 

zero-point offenders because he meets all the criteria set forth above. In addition, 

a reduction in Guerra’s sentence is consistent with the applicable policy 

statements. 

Specifically, application of the two-level reduction in Guerra’s sentence 

results in offense level of 23, with a new guideline range of 46 to 57 months.

Pursuant to the relevant policy statement, the Court cannot reduce Guerra’s 

term of imprisonment below the minimum of the amended guideline range—i.e., 

below 46 months. See U.S.S.G. § 1B1.10(b)(2)(A); see also Dillon v. United States, 

560 U.S. 817, 826, 130 S. Ct. 2683, 2691 (2010) (“The court is also constrained 

by the Commission’s statements dictating by what amount the sentence of a 

prisoner serving a term of imprisonment affected by the amendment may be 

reduced.” (cleaned up)). Thus, as the Court initially imposed a sentence of 47 

months, and the bottom of the amended guideline range is 46 months, the Court 

is able to reduce Guerra’s sentence, but only to 46 months. 

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Moreover, upon considering the § 3553(a) factors, the Court concludes 

that Guerra is entitled to a reduction in his sentence. Critically, the Court notes 

that the Government does not appear to oppose Guerra’s motion for a sentence 

reduction based upon the application of the § 3553(a) factors. (See generally

Resp., ECF No. 264.) 

B. Guerra is not entitled to appointment of counsel. 

Finally, the Court also determines that Guerra is not entitled to 

appointment of counsel to pursue his motion for reduction of sentence. Courts 

have uniformly held that defendants do not have a statutory or constitutional 

right to counsel in these matters. See United States v. Webb, 565 F.3d 789, 794-

95 (11th Cir. 2009) (“The notion of a statutory or constitutional right to counsel 

for § 3582(c)(2) motions has been rejected by all of our sister circuits that have 

addressed the issue, and we agree with this consensus.”). Additionally, Guerra

establishes no unique facts or circumstances that would warrant the Court’s 

exercise of discretion to appoint counsel here. 

4. Conclusion 

Accordingly, based on the foregoing, it is hereby ordered and adjudged

that Guerra’s motion for reduction of sentence is granted, such that his new 

sentence is 46 months in prison with four years of supervised release. (Mot., 

ECF No. 263.) Finally, Guerra’s motion for appointment of counsel is denied. 

(Mot., ECF No. 263.)

Done and ordered at Miami, Florida on March 5, 2024.

________________________________

Robert N. Scola, Jr.

United States District Judge

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