IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

: NO. 04-15

Plaintiff, :

:

v. :

:

JOSE ORTIZ-VEGA, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. FEBRUARY 7, 2012

I. INTRODUCTION

Defendant Jose Ortiz-Vega (“Defendant”) brings this

motion for a reduction of his sentence pursuant to 18 U.S.C. §

3582(c)(2). Defendant asks the Court to reduce his sentencing

guideline range from 97-121 months to 78-97 months pursuant to

the most recent amendment to U.S. Sentencing Guidelines Manual §

2D1.1(c), which increased the quantity thresholds for base

offense levels for the possession of crack cocaine. For the

reasons that follow, the Court will deny Defendant’s motion.

II. BACKGROUND

Defendant was indicted on January 13, 2004, on nine

counts. Specifically, Defendant was indicted for one count of

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distribution of more than 5 grams of crack cocaine (Count One);

one count of distribution of more than 50 grams of crack cocaine

(Count Three); one count of possession of more than 50 grams of

crack cocaine with the intent to distribute (Count Five); three

counts of distribution or possession of crack cocaine within a

school zone (Counts Two, Four, and Six); one count of possession

of more than 500 grams of cocaine with intent to distribute

(Count Seven); one count of possession of marijuana with intent

to distribute (Count Eight); and one count of possession of a

firearm in furtherance of a drug trafficking offense (Count

Nine). Indictment, ECF No. 14.

On February 27, 2004, Defendant pled not-guilty to all

nine counts. Then, on April 15, 2004, pursuant to a plea

agreement with the Government, Defendant changed his plea to

guilty on all nine counts. Under the Sentencing Guidelines in

effect at the time of Defendant’s sentencing, his guideline range

on the drug offenses was 97-121 months. The drug offenses

charged on Counts Three through Six carried a mandatory minimum

penalty of 120 months. See 21 U.S.C. 841(b)(1)(A)(iii) (2006)

(amended 2006, 2009, 2010). The gun offense carried a mandatory

consecutive sentence of 60 months. 18 U.S.C. § 924(c)(1)(A)(I)

(2006). Despite the mandatory minimum for the drug offenses, the

Government admits that it mistakenly recommended a sentence

within the guideline range of 97-121 months for the drug

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offenses. Gov.’s Br. in Resp. to Def.’s Mot. to Reduce Sentence

2, ECF No. 81 [hereinafter Gov.’s Br.]. It states that it should

have recommended a guideline range of 120-121 months for the drug

offenses, accounting for the mandatory minimum.1 Id. On July 6,

2004, the Court sentenced Defendant to 108 months for the drug

offenses and 60 months to run consecutive on the gun offense, for

a total period of incarceration of 168 months.

On December 24, 2007, Defendant filed a pro se motion

for a reduction of his sentence pursuant to § 3582(c)(2) and

Guidelines Amendment 706, which reduced the base offense levels

for most crack offenses. Mot. for an Order Granting a Sentence

Reduction, Dec. 24, 2007, ECF No. 71; see Amend. 706, U.S.

Sentencing Guidelines Manual App. C (2007) [hereinafter

U.S.S.G.]. The Court appointed the Federal Public Defenders as

counsel who agreed with the Government that Defendant was

ineligible for the sentence reduction. The court denied the

motion. See Order, June 10, 2008, ECF No. 79.

Currently before the Court is Defendant’s second

attempt to have the Court reduce his sentence pursuant to § 

3582(c)(2), this time under Guidelines Amendment 750.2 The 

1 The Government did not move for any departure or

variance from the mandatory minimum sentence. Gov.’s Br. 2 &

n.1. 

2 Amendment 750 in Appendix C of the U.S. Sentencing

Guidelines Manual changed the quantity threshold required to

trigger a mandatory minimum term of imprisonment. Amend. 750,

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Government opposes the motion.3 The matter is now ripe for

disposition.

III. DISCUSSION

A. Legal Standard

Upon a defendant’s motion, the Court may reduce a

defendant’s term of imprisonment when the Court has sentenced the

defendant “to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o).” 18 U.S.C. § 3582(c)(2) (2006). 

The Court must ensure that any reduction is “consistent with

applicable policy statements issued by the Sentencing

Commission.” Id. The Court must also consider the factors set

forth in 18 U.S.C. § 3553(a). Id.

In order to determine a defendant’s eligibility for a

sentencing reduction, the Third Circuit outlined a two-step

U.S.S.G. App. C at 392-93 (2011). It also conformed the

guideline penalty structure for crack cocaine offenses to the

approach followed for other drugs. Id. The Sentencing

Commission made this amendment retroactive, effective November 1,

2011. See U.S.S.G. § 1B1.10(c) (2011).

3 Defendant originally filed a pro se motion for a

reduction of sentence. ECF No. 80. The Government responded to

Defendant’s pro se motion. ECF No. 81. Thereafter, the Federal

Public Defenders filed a supplemental brief in support of

Defendant’s motion. ECF No. 83. The Court considered each of

these briefs in deciding Defendant’s motion.

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approach. See United States v. Doe, 564 F.3d 305, 309 (3d Cir.

2009). First, the defendant must have been “sentenced to a term

of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission; and second, the

sentence reduction must be consistent with applicable policy

statements issued by the Sentencing Commission.” Id. If a

defendant meets both steps of this inquiry, the Court then

considers the § 3553(a) factors. Dillion v. United States, 130

S. Ct. 2683, 2691-92 (2010). Nonetheless, it is within the

Court’s discretion whether to grant a reduction in the term of

imprisonment. See 18 U.S.C. § 3582(c)(2) (“[T]he court . . . may

reduce the term of imprisonment.” (emphasis added)).

B. Analysis

The parties dispute whether Defendant meets either of

Doe’s requirements. In particular, the parties diverge on

whether Defendant is eligible for a reduction at all because he

was subject to a mandatory minimum sentence of 120 months.4 With

respect to this mandatory minimum, Defendant contends that

because the Court did not impose this mandatory minimum sentence

4 Defendant does not seek an application of the Fair

Sentencing Act of 2010 (“FSA”) to the extent that it reduces his

mandatory minimum. As the Court sentenced Defendant in 2004,

before the FSA took effect on August 3, 2010, Defendant is

ineligible for a reduction of his mandatory minimum that was in

effect at the time of his original sentencing. See United States

v. Reevey, 631 F.3d 110, 115 (3d Cir. 2010).

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he is entitled to the retroactive effect of Amendment 750.5 See

Def.’s Supplemental Br. in Supp. of Mot. to Reduce Sentence 2,

ECF No. 83 [hereinafter Def.’s Br.]. The Government argues that,

regardless of what sentence Defendant received, he was still

subject to the 120-month mandatory minimum sentence at the time

of his sentencing and Amendment 750 did nothing to change that

fact. Gov.’s Br. 6. Accordingly, the Government concludes that

even if the Court were to go back in time and apply the nowamended Guidelines to Defendant’s sentencing, the mandatory

minimum sentence would not change and would “subsume and

displace[]” the guideline range under Amendment 750. Id. at 8.

1. Doe Step One

Under Doe, Defendant must first show that the Court

sentenced him based on a subsequently amended Guidelines

provision. In this case, although the Court sentenced Defendant

pursuant to a now-amended Guidelines provision, he was also

subject to a mandatory minimum. Defendant contends that he

satisfies Doe step one because, despite the mandatory minimum,

the Court applied the guideline range of 97-121 months when

5 The parties do not dispute that Amendment 750 reduces

Defendant’s initial guideline range. The parties agree that

under Amendment 750, without reference to any mandatory minimum

penalties, the base offense level for the drug offenses would be

30, with an adjusted offense level of 28, and as Defendant had a

criminal history category of I, his amended guideline range would

be 78-97 months. See Def.’s Br. 1 & n.1; Gov.’s Br. 6 n.6

6

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determining his sentence. The Government, on the other hand,

argues that regardless of its own error in not providing the

correct guideline range of 120-121 months, Defendant was still

subject to the mandatory minimum. Thus, he is ineligible for a

sentencing reduction under § 3582(c)(2). Though the parties do

not discuss it in their briefs, their competing arguments center

around interpreting the phrase “based on” under § 3582(c)(2). 

See 18 U.S.C. § 3582(c)(2) (allowing a reduction for a defendant

“who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered”). Yet, the

Court declines to resolve this issue here because, regardless,

Defendant fails to show that a reduction of his sentence is

consistent with the policy statement issued by the Sentencing

Commission--Doe step two.6

2. Doe Step Two

Under Doe’s second step, the Court assesses whether

Defendant’s reduced sentence would offend the policy statement

provided by the Sentencing Commission. Pursuant to the policy

6 The Third Circuit has held that “based on a sentencing

range” means that a subsequent amendment must alter the range the

district court actually used at sentencing for the defendant to

receive a sentence reduction. United States v. Mateo, 560 F.3d

152, 155 (3d Cir. 2009). The issue here is how Defendant’s

mandatory minimum, though not imposed, affects Defendant’s

eligibility. As stated, the Court need not resolve this dispute

because Defendant’s requested reduction is inconsistent with the

policy statement from the Sentencing Commission.

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statement, the Court first determines what guideline range would

have applied had Amendment 750 been in effect on July 6, 2004,

Defendant’s sentencing date. U.S.S.G. § 1B1.10(b)(1). Here, the

parties do not dispute that Amendment 750 would change

Defendant’s guideline range. The parties also do not dispute

that Defendant was subject to a mandatory minimum sentence of 120

months and this mandatory minimum is unchanged for purposes of

sentencing Defendant. Thus, as Defendant is still subject to the

mandatory minimum, the change in his guideline range under

Amendment 750 is irrelevant--a mandatory minimum sentence

subsumes and becomes the applicable guideline range for

Defendant. See Doe, 564 F.3d at 312. Therefore, the guideline

range applicable to Defendant, even after Amendment 750, is the

mandatory minimum of 120 months. 

Put another way, if the Court were to apply the method

under § 1B1.10--taking its own DeLorean back in time to July 6,

2004, with Amendment 750 in hand--while Defendant’s base offense

level would change under Amendment 750 his mandatory minimum

would not. Accordingly, the Court must use this mandatory

minimum when assessing Defendant’s eligibility under §

3582(c)(2).

To that end, the Commentary to the Guidelines’ policy

statement is particular instructive in this case. It states

that:

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[A] reduction in the defendant’s term of imprisonment is

not authorized under 18 U.S.C. § 3582(c)(2) and is not

consistent with this policy statement if: . . . [the]

amendment listed in subsection (c) is applicable to the

defendant but the amendment does not have the effect of

lowering the defendant’s applicable guidelines range

because of the operation of another guideline or

statutory provision (e.g., a statutory mandatory minimum

term of imprisonment).

U.S.S.G. § 1B1.10 cmt. 1(A) at 40 (emphasis added). Thus, in

this case, regardless of the fact that the Court sentenced

Defendant to a term in the middle of his guideline range and not

to the mandatory minimum, the operation of the statutory

mandatory minimum prevents the Court from reducing his term of

imprisonment under § 3582(c)(2). To do so would be in

contravention of § 1B1.10, a provision binding upon the Court. 

See Doe, 564 F.3d at 314.

Indeed, the Third Circuit addressed a similar argument

that Defendant presents here in Doe. In that case, the

defendants pled guilty to the distribution of crack cocaine and

moved for reductions of their sentences under § 3582(c)(2). Doe,

564 F.3d at 307. The defendants there were both subject to

mandatory minimums, however, the Government moved for downward

departures pursuant to U.S. Sentencing Guidelines Manual § 5K1.1. 

Id. at 308. Both defendants had guideline ranges below their

mandatory minimums and, indeed, the district court sentenced both 

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defendants to terms below the minimum of their guideline ranges. 

Id. 

In that case, the Third Circuit held that because the

defendants’ applicable guideline ranges were in fact their

mandatory minimums, the defendants were ineligible for a

sentencing reduction regardless of the fact that the district

court sentenced both defendants to terms below their mandatory

minimums and guideline ranges. Id. at 312. In so holding, the

court focused on § 1B1.10(a)(3)(B) of the policy statement. This

section “excludes a reduction if an amendment does not have the

effect of lowering a defendant’s applicable guideline range.” 

Id. The court reasoned that the term “applicable guideline

range” under § 1B1.10(a)(3)(B) means the guideline range that was

applicable at the time of sentencing. Id. In the case where

there is a mandatory minimum sentence, this mandatory minimum

sentence “subsumes and displaces the otherwise applicable

guideline range” and becomes the applicable guideline range. Id.

at 311 (citations and internal quotations omitted). The

guideline range calculated using a defendant’s offense level and

criminal history category is the “initial” guideline range, but

not the applicable guideline range within the meaning of the

Sentencing Guidelines. Id. at 312. Therefore, courts must look

to the applicable guideline range, which is the mandatory minimum

when one is applicable, when determining if a subsequent

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guideline amendment lowered that applicable guideline range. If

the amendment did not lower that range, the defendant is

ineligible for a sentencing reduction.

Doe’s reasoning is applicable here. In this case,

regardless of whether the Court sentenced Defendant using his

“initial” guideline range due to an inadvertent error, or

conscious decision pursuant to statutory authority as in Doe, his

applicable guideline range was still the mandatory minimum at the

time of his sentencing. Thus, in this case, as Defendant was

subject to the mandatory minimum at the time of his original

sentencing and this minimum is unchanged as to Defendant, it

would be contrary to the policy statement under § 1B1.10 to

reduce Defendant’s guideline and sentence in accordance with

Amendment 750. Thus, Defendant fails to satisfy Doe step two. 

The Court recognizes that Defendant’s original sentence

was below his statutorily required mandatory minimum, but this is

of no moment. Unfortunately, neither party brought this error to

the Court’s attention within the time required under Federal Rule

of Criminal Procedure 35. See Fed. R. Crim. P. 35(c) (2004)

(providing for, at the time of Defendant’s sentencing, seven days

to correct errors in sentencing). Nor did the Government appeal

Defendant’s sentence as illegal. The Court cannot revisit this

error during a § 3582(c)(2) proceeding. See Dillion, 130 S. Ct.

at 2694 (stating that courts cannot re-decide guideline

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applications during a § 3582(c)(2) proceeding); U.S.S.G. §

1B1.10(b)(1) (same); cf. Dolan v. United States, 130 S. Ct. 2533,

2546 (2010) (Roberts, C.J., dissenting) (“[I]f the trial court

fails to impose a mandatory term of imprisonment . . . the

Government cannot simply ask it to impose the correct sentence

later. If the error is clear, and raised within 14 days, it

might be corrected under Rule 35. Otherwise, the Government must

appeal, and seek resentencing on remand.”). That said, the Court

will not perpetuate this error by now granting Defendant’s motion

under § 3582(c)(2). To do so would be to overlook the statutory

mandatory minimum twice.

IV. CONCLUSION

For the reasons set forth above, Defendant’s motion

will be denied. An appropriate order shall follow. 

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