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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Rafael Adrian Arvayo-Lopez,

Defendant.

No. CR-18-00192-001-TUC-RCC (JR)

ORDER 

Before the Court is Defendant Rafael Arvayo-Lopez's Motion for Adjustment of 

Sentence pursuant to Amendment 821. (Doc. 41.) The Federal Public Defender filed a 

notice indicating it would not supplement Defendant's pro se filing. (Doc. 42.) For the 

reasons stated herein, the Court denies the motion.

I. Amendment 821

In November 2023, Amendment 821 to the United States Sentencing Guidelines 

("U.S.S.G.") went into effect retroactively. U.S.S.G. § 1B1.10. Part A of Amendment 821

reduced the number of status points applied to a defendant's criminal history. Id. "Status 

points" are points added when (1) a defendant received seven or more criminal history 

points, and (2) the current offense occurred while serving a sentence for a different 

offense. Id. at § 4A1.1(e); U.S. Sent'g Guidelines Manual suppl. to app. C, amend. 821 

(U.S. Sent'g Comm'n 2023). A defendant who has six or fewer criminal history points

under U.S.S.G. §§ 4A1.1(a)–(d) now receives no status points. U.S.S.G § 4A1.1(e). A 

defendant who has seven or more criminal history points will now only receive one status 

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point instead of two. Id.

In addition, under Part B of Amendment 821, an offender who received no 

criminal history points ("zero-point offender") can receive a two-level decrease in offense 

level. Id. at § 4C1.1(a). However, Part B does not permit a two-level decrease when:

1. Defendant used "violence or credible threats of violence in connection with the 

offense;"

2. The offense "result[ed] in death or serious bodily injury;"

3. Defendant's instant offense was a sex offense;

4. The offense caused substantial financial hardship;

5. Defendant was in possession of a dangerous weapon during the offense;

6. Defendant was "engaged in a continuing criminal enterprise";

7. The offense involved individual rights under § 2H1.1;

8. Defendant received an adjustment under either § 3A1.4 (Terrorism); § 3A1.1 § 

3A1.6, or § 3B1.1.

Id.

II. Discussion

Defendant pleaded guilty to one count of Conspiracy to Possess with Intent to 

Distribute Marijuana. (Doc. 26.) The plea agreement included a stipulated 84-month term 

of incarceration. (Id.) 

The presentence report calculated Defendant's total offense level as 30, determined 

Defendant had 6 criminal history points for two prior marijuana convictions, and added 2 

status points because Defendant committed the instant offense while under a criminal 

justice sentence. (Doc. 34 at 9–11.) An offense level of 30 with 8 criminal history points

placed Defendant a criminal history category IV. (Id. at 10.) This resulted in a guidelines

range of 135–168 months' incarceration. (Id. at 17.) The Court adopted the presentence 

report (Doc. 38) and sentenced Defendant to the stipulated 84 months' incarceration

(Doc. 39).

Defendant believes he should be afforded a two-level reduction in offense level 

because he had no criminal history points. (Doc. 41.) This assertion is incorrect.

Defendant received 6 criminal history points for prior convictions and is not entitled to a 

reduction under Section B of Amendment 821. 

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Furthermore, Defendant is not entitled to relief under Section A of Amendment 

821. Under the United States Sentencing Guidelines, a defendant's sentence cannot be 

reduced if—when applied—the amended sentence "does not have the effect of lowering 

the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2)(B). Even if the 

Court subtracted the two status points pursuant to Amendment 821 Section A, an offense 

level 30 with six criminal history points (a criminal history category III) would result in 

sentencing range of 121–151 months' incarceration. Defendant was sentenced well below 

the amended range. 

Accordingly, IT IS ORDERED Defendant Rafael Arvayo-Lopez's Motion for 

Adjustment of Sentence pursuant to Amendment 821 is DENIED. (Doc. 41.)

Dated this 9th day of April, 2024.

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