United States District Court, D. Minnesota
Dunne, Esq., Assistant United States Attorney, United States
Attorney's Office, Minneapolis, MN, on behalf of
Osvaldo Flores-Velasquez, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Osvaldo Flores-Velasquez's
(“Flores-Velasquez”) Motion to Reduce Sentence
[Docket No. 267]. Flores-Velasquez argues that when the Court
granted his previous Motion to Reduce Sentence [Docket No.
259], it incorrectly resentenced him under a higher criminal
history category, resulting in an elevated sentence. The
Government opposes the Motion, arguing that the Court
properly determined Flores-Velasquez's guideline range
when it resentenced him, and the Court is not authorized to
impose a sentence below his reduced 188 month sentence. For
the reasons set forth below, Flores-Velasquez's motion is
April 10, 2007, Flores-Velasquez pled guilty to the charge of
conspiracy to distribute and possess with intent to
distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846. See
Min. Entry [Docket No. 161]. At his July 31, 2007 sentencing,
Flores-Velasquez was found to have an offense level of 36 and
a criminal history level of III, which placed his guideline
range at 235 to 293 months imprisonment. Tr. [Docket No. 207]
5:16-6:20. The Court, however, determined that
Flores-Velasquez's criminal history was overstated and
adjusted his criminal history to level II, as authorized
under U.S.S.G. § 4A1.3(b). Id. at 6:9-13. With
this adjustment, Flores-Velasquez's guideline range of
imprisonment was reduced to 210 to 262 months. The Court then
sentenced Flores-Velasquez to 210 months imprisonment.
See Sentencing J. [Docket No. 186].
October 11, 2016, Flores-Velasquez filed a Motion to Reduce
Sentence [Docket No. 259] under 18 U.S.C. § 3582(c)(2)
based on Amendment 782 to the Sentencing Guidelines, which
lowered the drug quantity base offense levels set forth in
the Sentencing Guidelines for certain drug offenses. This
motion was granted, and Flores-Velasquez's sentence was
reduced to 188 months imprisonment, the low end of his
adjusted guideline range of imprisonment. See Order
[Docket No. 261].
November 22, 2016, Flores-Velasquez again moved for a
sentence reduction. See Mot. Reduce Sentence [Docket
No. 264]. Flores-Velasquez argued that when he was originally
sentenced, he was adjudged to have a criminal history
category level II, but when his offense level was lowered by
two levels, he was given a new sentence based on a criminal
history category level III. On December 2, 2016, the Court
denied this motion, concluding that Flores-Velasquez was
properly assigned a criminal history level III, not II, when
his sentence was reduced in October, 2016. See Order
[Docket No. 266].
again moves for a sentence reduction, raising the same
argument-that he should have been resentenced with a criminal
history level of II rather than III. In support,
Flores-Velasquez attaches the portion of the sentencing
transcript where the Court reduced his criminal history level
from III to II based on a finding of overstated criminal
Government opposes Flores-Velasquez's motion, arguing
that a variance under § 4A1.3 departs from the
applicable guideline range. Since Flores-Velasquez was
adjudged to have a criminal history level III, pursuant to
§ 1B1.10(b)(2)(A), the Court is restrained from imposing
a sentence below 188 months.
relevant part, § 3582(c)(2) provides that a court
“may not modify a term of imprisonment once it has been
imposed except that . . . 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).” Section 1B1.10(b)(2)(A) of the Federal
Sentencing Guidelines (the “Guidelines”) provides
that “the court shall not reduce the defendant's
term of imprisonment under 18 U.S.C. § 3582(c)(2) and
this policy statement to a term that is less than the minimum
of the amended guideline range determined under subdivision
(1) of this subsection.” The “amended guideline
range” is the “guideline range that would have
been applicable to the defendant if the amendment(s) to the
guidelines . . . had been in effect at the time the defendant
was sentenced.” Id. § 1B1.10(b)(1).
sentencing, the Court determined that Flores-Velasquez's
criminal history category was III, and that his base offense
level was 36. See id. § 2D1.1. This
determination yielded a Guidelines range of 235-293 months.
However, the Court determined that Flores-Velasquez's
criminal history was overstated and, pursuant to U.S.S.G.
§ 4A1.3(b), reduced his criminal history category to
level II, which lowered his Guidelines range to 210-262. On
October 12, 2016, when Flores-Velasquez's first sentence
reduction motion ...