United States v. Salazar-Sosa

          Jeffrey S. Paulsen, United States Attorney's Office, counsel for plaintiff.

          Samuel Salazar-Sosa, #17908-041, Giles W. Dalby CI, defendant pro se.

          ORDER

          David S. Doty, Judge United States District Court

         This matter is before the court upon the motion by defendant Samuel Salazar-Sosa for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On July 7, 2014, Salazar-Sosa pleaded guilty to conspiracy to distribute a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. In the plea agreement, Salazar-Sosa admitted that he was an average participant in the conspiracy. On January 5, 2015, the court sentenced Salazar-Sosa to 57 months' imprisonment, followed by three years of supervised release.

         Salazar-Sosa now moves for a reduction in his total sentence pursuant to Amendment 794 of the United States Sentencing Guidelines, which became effective on November 1, 2015. Amendment 794 addresses the standards governing mitigating-role reductions under Guidelines § 3B1.2. Salazar-Sosa argues that he qualifies as a minor, rather than average participant under the amendment. The government opposes the motion on the grounds that the amendment does not apply retroactively and because Salazar-Sosa stipulated that he was an average participant. The court agrees with the government.

         The court may modify a term of imprisonment when the Sentencing Commission subsequently lowers a sentencing range. 18 U.S.C. § 3582(c). A post-sentencing guidelines amendment applies retroactively, however, only if the Sentencing Commission expressly declares it to be retroactive. See U.S.S.G. § 1B1.10(d). Because the Sentencing Commission did not include Amendment 794 on the list of retroactively applicable amendments, see id., it cannot be applied to Salazar-Sosa. See United States v. Lewis, No. 16-2939, 2016 WL 6601644, at *3 (D. Minn. Nov. 7, 2016) (rejecting application of Amendment 794 because it is not retroactive); United States v. Shelton, No. 10-295(8), 2016 WL 6584908, at *1 (D. Minn. Nov. 4, 2016) (same). Further, Salazar-Sosa conceded his average role in the offense, which undermines the factual basis for his motion.

         Accordingly, based on the above, IT IS HEREBY ORDERED that the motion for sentence reduction pursuant to 18 U.S.C. ...