IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA )

)

v. ) No. 3:03-CR-361-B(1)

)

HECTOR HURTADO-AGUILAR, )

Defendant. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

By order of reference filed July 15, 2020 (doc. 246), before the Court is the defendant’s

Motion for Reduction of Sentence Persuant [sic]to 18 U.S.C. § 3582(c)(2), received on June 18,

2020 (doc. 245). Based on the relevant filings and applicable law, the motion should be DENIED.

I. BACKGROUND

After initially being charged by complaint on September 22, 2003, Hector Hurtado-Aguilar

(Defendant) was indicted for conspiracy to possess with the intent to distribute methamphetamine,

in violation of 21 U.S.C. § 846, on October 8, 2003. (See docs. 1, 37.)1

 He pled guilty to the charge

on January 28, 2004. (See docs. 83, 84, 93.) The 2003 Sentencing Guidelines Manual was used

to compute his applicable sentencing guidelines. (See doc. 231 at 8.) Defendant was held

accountable for 7.115 kilograms of crystal methamphetamine (ice), resulting in a base offense level

of 38 under the drug quantity table of U.S.S.G. §2D1.1(c) then in effect. (See id. at 8, 16.) 

Following adjustments for importation of the ice from Mexico, his role in the offense, and

acceptance of responsibility, Defendant’s total offense level was calculated as 40. (See id. at 8.) 

By judgment entered August 20, 2004, he was sentenced to 300 months of imprisonment, to be

followed by a 5-year term of supervised release. (See doc. 167.) 

1

 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers

at the bottom of each filing. Unless otherwise indicated, all document numbers refer to the docket numbers assigned

in this action, 3:03-CR-361-B(1).

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Defendant appealed his conviction and sentence to the United States Court of Appeals for

the Fifth Circuit, and it affirmed both on April 11, 2006. (See docs. 168, 169, 226, 227.) On April

3, 2007, Defendant moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (See

3:07-CV-589-P-BH, doc. 1.) The motion was denied with prejudice on June 25, 2008. (See id. docs.

14, 15.) The Fifth Circuit subsequently denied Defendant’s request for a certificate of appealability. 

(See doc. 233.)

On November 20, 2014, Defendant moved for a reduction of sentence under 18 U.S.C. §

3582(c)(2) based on the 2014 amendments to the United States Sentencing Guidelines (Sentencing

Guidelines), which reduced base offense levels for certain controlled substances in the drug quantity

table of § 2D1.1(c). (See doc. 235.) His motion was denied on February 11, 2015. (See doc. 237.) 

On May 15, 2020, he moved for a reduction of sentence under Section 404 of the First Step Act of

2018, and his motion was denied on May 21, 2020. (See docs. 243, 244.) Defendant now again

moves to reduce his sentence under § 3582(c)(2). (See doc. 245.) 

II. ANALYSIS

Defendant seeks a sentence reduction under 18 U.S.C. § 3582(c)(2) on grounds that the

applicable sentencing range when he was sentenced was reduced by the 2014 amendments to the

Sentencing Guidelines and made retroactively applicable to his sentence. 

Section 3582(c)(2) states:

(c) Modification of an imposed term of imprisonment.--The court may not modify

a term of imprisonment once it has been imposed except that--

. . . 

(2) in 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 pursuant to 28 U.S.C. 994(o), upon motion of the

defendant or the Director of the Bureau of Prisons, or on its own motion, the

2

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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(c)(2); see also United States v. Porter, 335 F. App’x 408, 409 (5th Cir. 2009)

(“Under § 3582(c), a defendant may have his sentence modified if he was sentenced to a term of

imprisonment based upon a sentencing range that subsequently was lowered by the Sentencing

Commission.”). The Sentencing Commission policy statement applicable to § 3582(c)(2) prohibits

a sentence reduction as inconsistent with the policy statement where a subsequent amendment to the

Sentencing Guidelines “does not have the effect of lowering the defendant’s applicable guideline

range.” U.S.S.G. § 1B1.10(a)(2)(B). 

The Sentencing Commission adopted Amendment 782 to the Sentencing Guidelines,

effective November 1, 2014, which amended the Drug Quantity Table at U.S.S.G. §2D1.1(c) by 

“reduc[ing] the base offense level by two levels for most drug offenses.”2 Hughes v. United States,

-- U.S. ----, 138 S.Ct. 1765, 1774 (2018); see also U.S.S.G. App. C, Amdt. 782 (Supp. Nov. 2012-

Nov. 2016); U.S.S.G. § 2D1.1(c). Amendment 782 was subsequently made retroactive to defendants

sentenced under the higher base offense levels. See Hughes, 138 S.Ct. at 1774. 

At sentencing, Defendant was held accountable for 7.115 kilograms of ice. (See doc. 231

at 5, 16.) The 2003 drug quantity table under which Defendant was sentenced assigned a base

offense level of 38 for “15 KG or more of Methamphetamine, or 1.5 KG or more of

Methamphetamine (actual), or 1.5 KG or more of ‘Ice.’” U.S.S.G. § 2D1.1(c)(1)(2003). The

amended sentencing range assigns a base offense level of 38 for “45 KG or more of

2

 Amendment 782 to the Sentencing Guidelines is listed among the “Covered Amendments” of the policy statement

applicable to § 3582(c)(2). U.S.S.G. § 1B1.10(d)(“Amendments covered by this policy statement are listed in Appendix

C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591,

599, 606, 657, 702, 706 as amended by 711, 715, 750 (parts A and C only), and 782 (subject to subsection (e)(1)).”).

3

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Methamphetamine, or 4.5 KG or more of Methamphetamine (actual) or 4.5 KG or more of ‘Ice.’” 

U.S.S.G. § 2D1.1(c)(1). Because of the amount of ice for which he was held accountable,

Defendant’s base offense level remains 38 under the amended sentencing guideline range. See

U.S.S.G. § 2D1.1(c)(1) (base offense level of 38 for 4.5 kilograms or more of ice). Because his

applicable sentence range was not reduced by Amendment 782 to the Sentencing Guidelines, he is

not entitled to a sentence reduction under § 3582(c)(2) and U.S.S.G. § 1B1.10(a)(2)(B). 

III. RECOMMENDATION

Defendant’s Motion for Reduction of Sentence Persuant [sic] to 18 U.S.C. § 3582(c)(2) 

should be DENIED. 

SIGNED this 3rd day of August, 2020.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within fourteen days after being served with

a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must

identify the specific finding or recommendation to which objection is made, state the basis for the

objection, and specify the place in the magistrate judge’s findings, conclusions and recommendation

where the disputed determination is found. An objection that merely incorporates by reference or

refers to the briefing before the magistrate judge is not specific. Failure to file specific written

objections will bar the aggrieved party from appealing the factual findings and legal conclusions of

the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain

error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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