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United States v. Rishor

United States District Court, W.D. Washington, Seattle

December 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KIRK RISHOR, Defendant.

          ORDER ON MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. §3582

          Marsha J. Pechman United States District Judge.

         The above-entitled Court, having received and reviewed:

         1. Defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582 (Dkt. No. 222);

         2. Government's Response in Opposition to Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582 (Dkt. No. 226);

         3. Defendant's Supplement to 782/788 Motion for Reduction of Sentence (Dkt. No. 227);

         4. Government's Response to Defendant's Supplemental Briefing (Dkt. No. 228); and all relevant portions of the record, rules as follows:

         IT IS ORDERED that the motion is DENIED.

         Discussion

         At issue here is whether this Court has authority to reduce Defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2), which states:

[I]n 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 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.

         The Sentencing Commission has made it clear, in keeping with the statutory directive that a reduction should occur only where the defendant's sentencing range was lowered, that a sentencing court is not permitted to reduce a defendant's sentence when a retroactive amendment does not result in lowering the applicable sentencing range for the defendant. See USSG §1B1.10. The Ninth Circuit has affirmed denial of retroactive reduction where the final sentencing range was unaffected by the operation of the grouping rules. United States v. Leniear, 574 F.3d 668, 673-74 (9th Cir. 2009).

         Pursuant to the career offender provisions of the Sentencing Guidelines, qualified recidivist offenders are assigned a base offense level for drug trafficking violations that is independent from the drug quantity table in §2D1.1. See USSG 4B1.1, et seq. The Ninth Circuit has ruled that relief is unavailable in the scenario where a career offender seeks application of a retroactive amendment to a drug guideline. United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009).

         Defendant was sentenced in December 2011 after being convicted of three drug-trafficking felonies. At sentencing, this Court calculated his Total Offense Level at 34, based on his qualifications as a career offender. See PSR ¶ 47 (increasing the offense level from 22 to 37 pursuant to USSG § 4B1.1(b), then reducing it by three levels for acceptance of responsibility). The resulting Total Offense Level of 34 (combined with a Criminal History category of VI) resulted in a career offender Guidelines range of 262 to 327 months. The Court granted a significant downward variance based on the parties' recommendations and other 18 U.S.C. § 3553(a) factors and imposed a sentence of 132 months' imprisonment.

         In the wake of the amendments to the Sentencing Guidelines, Defendant's applicable guideline range has not changed in the slightest; Defendant's offense level and sentencing range are exactly as they were before. The Sentencing Commission has made it clear that the range under consideration for eligibility purposes is “the guideline range that corresponds to the offense level and criminal history category determined pursuant to 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” USSG § 1B1.10 app. n. 1(A) (emphasis added). Because Defendant's ...


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