United States District Court

for the

Southern District of Florida

United States of America, 

Plaintiff

v.

James Nino, 

Defendant. 

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Criminal Case No. 88-00121-CR-Scola

Order Granting Motion for Sentence Reduction

This matter is before the Court on the Defendant James Nino’s motion for 

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). (Mot., ECF No. 74.) Mr. 

Nino requests the Court reduce his sentence from 70 months to 57 months. (Id.) 

Mr. Nino pleaded guilty to possession with intent to distribute a controlled 

substance. (ECF No. 73.) The Court sentenced Mr. Nino to 70 months. (Id.) 

Separately, Mr. Nino was indicted for escaping custody. United States v. Nino, 

No. 88-cr-00825, ECF No. 22. He pleaded guilty and was sentenced to 10 

months on that charge. 

After careful consideration of the motion, the record, and the legal

authorities, the Court grants the motion and reduces Mr. Nino’s sentence for 

possession with intent to distribute a controlled substance to 63 months. (Mot., 

ECF No. 74.) The sentence is to run consecutively with the ten-month sentence 

for the escape. United States v. Nino, No. 88-cr-00825. All other terms and 

conditions of Mr. Nino’s sentence—including supervised release—remain in full 

force and effect.

1. 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 

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 

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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).

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).

2. Analysis 

Mr. Nino is entitled to a sentence reduction. The retroactive amendment that 

Mr. Nino invokes here is 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 

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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 Mr. Nino’s case reveals that he is eligible for a sentence 

reduction pursuant to Amendment 821. Mr. Nino qualifies for the adjustment for 

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

a reduction in Mr. Nino’s sentence is consistent with the applicable policy 

statements.

Specifically, a two-level reduction would decrease Mr. Nino’s offense level from 

28 to 26. Level 26 carries an advisory guideline range of 63 to 78 months. 

Pursuant to the relevant policy statement, the Court cannot reduce Mr. Nino’s 

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

below 63 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 70

months on this charge, and the bottom of the amended guideline range is 63

months, the Court is able to reduce Mr. Nino’s sentence to 63 months.

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

Mr. Nino is entitled to a reduction in his sentence.

3. Conclusion 

Accordingly, the Court grants the motion and reduces Mr. Nino’s sentence

for possession with intent to distribute a controlled substance to 63 months. 

(Mot., ECF No. 74.) The sentence is to run consecutively with the ten-month 

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sentence for the escape. United States v. Nino, No. 88-cr-00825. All other terms 

and conditions of Mr. Nino’s sentence—including supervised release—remain in 

full force and effect.

Done and ordered at Miami, Florida on February 15, 2024.

________________________________

Robert N. Scola, Jr.

United States District Judge

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