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United States v. Hernandez

United States District Court, D. Minnesota

March 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
(1) ELIO HERNANDEZ a/k/a CHRISTIAN HERNANDEZ-SELDANA, Defendant.

          Andrew S. Dunne, Assistant United States Attorney, Counsel for Plaintiff.

          Elio Hernandez, pro se.

          MEMORANDUM OF LAW & ORDER

          Michael J. Davis United States District Judge

         I. INTRODUCTION

         This matter is before the Court on Defendant Elio Hernandez's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c). [Docket No. 269]

         II. BACKGROUND

         On July 31, 2008, Defendant Elio Hernandez, indicted as Christian Hernandez-Seldana, pled guilty to a one-count Indictment: Conspiracy to Distribute and Possess with Intent to Distribute 1 Kilogram or More of Heroin and a Detectable Amount of Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846. Before sentencing, the Probation Office prepared a Presentence Investigation (“PSI”). The PSI calculated a total offense level of 39 based on a base offense of 38 under U.S.S.G. § 2D1.1, a 4-level increase for role under U.S.S.G. § 3B1.1(a), and a 3-level reduction of acceptance of responsibility under U.S.S.G. § 3E1.1. The PSI calculated 4 criminal history points: 2 points for a 2004 conviction for drug possession (PSI ¶ 47) and 2 points for a 2005 conviction for illegal entry (¶ 48), for a criminal history category III. At sentencing, Defendant moved for a downward departure for substantial overstatement of his criminal history under U.S.S.G. § 4A1.3. The Court denied the motion and adopted the Guideline calculations in the PSI, for a total offense level of 39, criminal history category III, and an advisory Guideline range of 324-405 months. The Court then sentenced Defendant to a term of imprisonment of 360 months.

         Defendant appealed his conviction and sentence to the Eighth Circuit Court of Appeals, which affirmed. United States v. Hernandez, 354 Fed.Appx. 277 (8th Cir. 2009).

         Defendant later filed a motion requesting a sentence reduction under 18 U.S.C. § 3582(c)(2), based on Amendment 782. [Docket Nos. 252, 258] ¶ 2016, the Court granted the motion, found that Defendant's Guideline range had been retroactively reduced, and resentenced Defendant to 290 months imprisonment. [Docket No. 259]

         In May 2018, Defendant filed a motion, under 18 U.S.C. § 3582(c), challenging the calculation of his criminal history under Amendment 709 of the Guidelines. [Docket No. 264] In July 2018, the Court denied Defendant's motion because Amendment 709 was not retroactive, the 2008 version of the Guidelines was used at his sentencing, and Amendment 709 had no application to Defendant's case. [Docket No. 268]

         Defendant has now filed another motion to reduce his sentence under 18 U.S.C. § 3582(c). He asserts that United States Sentencing Guidelines Amendment 802 retroactively applies to his sentencing to lower his advisory guideline range and to warrant a downward departure.

         III. DISCUSSION

         Defendant asserts that his sentence should be reduced based on Amendment 802. In support of that claim, he argues that Amendment 802 amended the commentary to U.S.S.G. § 5G1.3 regarding downward departures for overstatement of criminal history category and that his criminal history category was overstated because his prior offense for drug possession did not warrant 2 points. He also argues that Amendment 802 altered the calculation of the base offense level under U.S.S.G. § 2L1.2, and, therefore, his base offense level should have been lower.

         A. Standard ...


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