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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:08-cr-00992-NVW Document 291 Filed 10/01/20 Page 1 of 10 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, No. CR-08-00992-001-PHX-NVW 10 Plaintiff, 11 v. ORDER 12 Aaron Quintero-Soto, 13 Defendant. 14 15 Before the Court is Defendant Aaron Quintero-Soto’s (“Defendant”) Motion for 16 Reduction Pursuant to the First Step Act (Doc. 275). For the reasons stated below, the 17 Court holds Defendant is eligible for resentencing and shall reduce his sentence by 27 18 months. 19 I. BACKGROUND 20 On June 4, 2009, Defendant pleaded guilty to one count of Conspiracy to Possess 21 with the Intent to Distribute Cocaine, Cocaine Base, and Methamphetamine in violation of 22 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 841(b)(1)(A)(viii) and 846. 23 (Docs. 165; 248.) In the factual basis section of Defendant’s plea agreement with the 24 United States of America (the “Government”), Defendant admitted that he conspired with 25 a number of individuals “to possess with intent to distribute more than 500 grams of 26 methamphetamine, 5 kilograms of cocaine, and 50 grams of cocaine base” and that on 27 August 21, 2008, agents of the United States Drug Enforcement Administration seized 28 “approximately 8 kilograms of methamphetamine, approximately 48 kilograms of cocaine, Case 2:08-cr-00992-NVW Document 291 Filed 10/01/20 Page 2 of 10 1 and approximately 1.4 kilograms of cocaine base” from two vehicles associated with him. 2 (Doc. 248 at 13.) On October 29, 2009, the Honorable Earl H. Carroll1 sentenced 3 Defendant to a 262-month term of imprisonment and 25 years of supervised release. (Doc. 4 250.) 5 On December 24, 2019, Defendant brought the instant motion (Doc. 275).2 6 Defendant does not ask for a specific sentence; he merely “asks the Court to sentence him 7 outside the otherwise applicable guideline range.” (Doc. 275 at 1.) While the motion is 8 styled as a “Motion for Reduction Pursuant to the First Step Act,” Defendant contends he 9 is “entitled to a new plenary sentencing hearing at which the District Court may impose a 10 reduced sentence.” (Id. at 6.) The Government’s response in opposition filed on February 11 6, 2020 argues Defendant is not eligible for resentencing and that even if he were, the Court 12 should exercise its discretion to not reduce his sentence. (Doc. 279 at 10.) Defendant 13 replied to the Government’s response on April 9, 2020 (Doc. 284). 14 II. ANALYSIS 15 The parties raise two issues: whether, under Section 404 of the First Step Act of 16 2018 (the “First Step Act”), (A) Defendant is eligible for resentencing and (B) if so, 17 whether Defendant is entitled to a plenary resentencing. Two related statutes control the 18 Court’s analysis: the Fair Sentencing Act of 2010 (the “Fair Sentencing Act”), Pub. L. No. 19 111-220, 124 Stat. 2372, and the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194. 20 Congress enacted the Fair Sentencing Act to reduce the disparate treatment of 21 offenders who dealt cocaine base (also known as crack cocaine) compared to those who 22 dealt powder cocaine. United States v. Kelley, 962 F.3d 470, 471-72 (9th Cir. 2020) (citing 23 Dorsey v. United States, 567 U.S. 260, 268-69 (2012)). As the Ninth Circuit explained: 24 25 1 This case was reassigned to the undersigned judge on September 6, 2011. (Doc. 256.) 26 2 Thrice previously has Defendant attempted to reduce his sentence. In 2012, he filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255; in 2016, he 27 moved for a sentence reduction based on an amendment to the Federal Sentencing Guidelines under 18 U.S.C. § 3582(c)(2); in 2017, he brought another § 3582(c)(2) motion. 28 (Docs. 258; 260; 264.) All of these motions were denied. (Docs. 259; 262; 266.) - 2 - Case 2:08-cr-00992-NVW Document 291 Filed 10/01/20 Page 3 of 10 1 Before the Fair Sentencing Act, an offense involving 50 or more grams of 2 crack cocaine would be subject to a statutory sentencing range of 10 years to life in prison, 21 U.S.C. § 841(b)(1)(A)(iii) (2006), and an offense involving 3 5 or more grams of crack cocaine would be subject to a statutory sentencing range of 5 to 40 years in prison, 21 U.S.C. § 841(b)(1)(B)(iii) (2006). Section 4 2 of the Fair Sentencing Act amended these sections so that a higher quantity 5 of drugs would be needed to trigger the same sentences; thus, an offense involving 280 or more grams (rather than 50 or more grams) of crack cocaine 6 was subject to a sentence of 10 years to life in prison, and an offense 7 involving 28 or more grams (rather than 5 or more grams) of crack cocaine was subject to a sentence of 5 to 40 years in prison. See Fair Sentencing Act 8 § 2. 9 Id. at 472 (footnote omitted). This statute did not, however, affect the sentencing ranges 10 for similar offenses involving other controlled substances, such as powder cocaine and 11 methamphetamine. See generally Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 12 124 Stat. 2372, 2372. More importantly, “its provisions applied only to those sentenced 13 after its effective date [August 3, 2010], leaving those sentenced earlier with no relief.” 14 United States v. Brown, --- F.3d ----, 2020 WL 5384936, at *3 (10th Cir. Sept. 9, 2020) 15 (citing Dorsey, 567 U.S. at 268-69) (internal citation omitted). 16 Section 404 of the First Step Act made Sections 2 and 3 of the Fair Sentencing Act 17 retroactive. Under the First Step Act: 18 A court that imposed a sentence for a covered offense may, on motion of the 19 defendant . impose a reduced sentence as if sections 2 and 3 of the Fair 20 Sentencing Act of 2010 . were in effect at the time the covered offense was committed. 21 First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. Therefore, 22 the First Step Act enabled offenders whose sentences were final before Congress enacted 23 the Fair Sentencing Act to obtain relief, which Defendant now seeks.3 24 25 3 Some courts have held motions under Section 404(b) of the First Step Act are properly brought under 18 U.S.C. § 3582(c)(1)(B), under which a court “may modify an imposed 26 term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” See, e.g., United States v. Wirsing, 943 F.3d 27 175, 184 (4th Cir. 2019) (finding the First Step Act “fits under the narrow exception to finality provided by § 3582(c)(1)(B) because it expressly permits the court to modify a term 28 of imprisonment” (internal quotation marks and citation omitted)). This view is mistaken, as “the First Step Act is its own procedural vehicle.” United States v. Sutton, 962 F.3d 979, - 3 - Case 2:08-cr-00992-NVW Document 291 Filed 10/01/20 Page 4 of 10 1 A. Defendant Is Eligible for Resentencing Under the First Step Act 2 Whether Defendant is eligible for resentencing boils down to whether he was 3 “sentence[d] for a covered offense.” See id.; see also United States v. Boulding, 960 F.3d 4 774, 778 (6th Cir. 2020) (determining the defendant’s eligibility for a reduced sentence 5 under the First Step Act “distils to whether he was convicted of a ‘covered offense’ under 6 § 404(a)”). “[T]he term ‘covered offense’ means a violation of a Federal criminal statute, 7 the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act 8 of 2010 (Public Law 111-220; 124 Stat. 2372), that was committed before August 3, 9 2010.”4 First Step Act § 404(a). Defendant pleaded guilty to “conspir[ing] with a number 10 of individuals to possess with intent to distribute more than 500 grams of 11 methamphetamine, 5 kilograms of cocaine, and 50 grams of cocaine base in violation of 12 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 841(b)(1)(A)(viii) and 846. 13 (See Doc. 248 at 13; see also Doc. 250.) First, the Fair Sentencing Act modified the 14 statutory penalty for Defendant’s offense with respect to crack cocaine by increasing the 15 threshold for a 10-year mandatory minimum sentence from 50 grams to 280 grams. See 16 Kelley, 962 F.3d at 472. Second, the violation was committed before August 3, 2010. 17 Accordingly, Defendant’s offense is covered and he is eligible for resentencing. 18 Both of the Government’s arguments to the contrary fail. First, the Government 19 argues Defendant is not eligible for resentencing because Defendant—in addition to 20 pleading guilty to conspiracy to possess with the intent to distribute 50 grams or more of 21 crack cocaine—also pleaded guilty to conspiracy to possess with the intent to distribute 5 22 984 (7th Cir. 2020); cf. Kelley, 962 F.3d at 477 (“[T]he First Step Act expressly permits a specific type of sentence reduction, and we interpret and implement such an independent 23 congressional enactment on its own terms.” (citing Morton v.
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