USA v. Ayala et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 	No. 1:03-cr-568-WJ-3
GABRIEL DAVID GOMEZ,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR A SENTENCE REDUCTION
THIS MATTER comes before the Court upon Defendant Gabriel Gomez’s “Motion for a
Reduction of Sentence” [Doc. 733] seeking compassionate release. The United States filed a
Response [Doc. 739]. The United States opposes the requested relief. Having reviewed the parties’
briefing and the applicable law, the Court DENIES Gomez’s motion for a compassionate release.1
His concomitant request for a reduction in supervised release from five years to one year is also
DENIED.
1 Defendant’s counsel had requested a hearing on the Motion for a Reduction of Sentence. On
December 23, 2025, the Court set a hearing for February 13, 2026. [Doc. 749]. The Court also
entered an amended notice of hearing on January 13, 2026, setting additional matters to be heard
at the same time as the original notice. [Doc. 751]. Defendant’s counsel then filed a request to
vacate the hearing on January 19, 2026, and provided the Court with a limited number of dates
when counsel indicated he would be available. [Doc. 753]. Unfortunately, over the past twelve
months, the Court’s criminal and habeas corpus caseload arising out of immigration and border
issues has increased exponentially, leaving no time available on the dates counsel had indicated
he would be able to attend. After review of the record, the Court has determined that a hearing is
unnecessary to decide the Motion and, therefore, issues this Memorandum Opinion on the
written record.
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BACKGROUND
Gabriel David Gomez was indicted by a Grand Jury on March 25, 2003, on one count of
conspiracy to distribute 1000 kilograms or more of a substance containing a detectable amount of
marijuana and 52 counts of money laundering. [1:03-cr-00568-WJ (“CR”) Doc. 1]. 	The
forfeiture count of the Indictment, Count 68, sought forfeiture of $15,657,670.00. Gomez was one
of several co-defendants in the proceeding. A few days before jury selection was to commence in
Gomez’s jury trial, he pled guilty to all counts without the benefit of a plea agreement. [CR Doc.
343]. At the time of sentencing, his offense level was 44 and his Criminal History Category was
III, resulting in a guideline range of life imprisonment. [CR Doc. 745 at 1; CR Doc. 745-1].
Gomez was sentenced to 360 months on Count 1 (distribution), 240 months as to each of Counts
2-24 (money laundering), and 120 months as to each of Counts 30-54 (money laundering), to run
concurrently for a total term of incarceration of 360 months. He was also sentenced to a total term
of supervised release of 5 years. The Judgment and Commitment Order was entered on May 24,
2005. [CR Doc 500].
Mr. Gomez was sentenced on May 24, 2005. [CR Doc 500]. 	The now-foundational
decision in United States v. Booker, 543 U.S. 220 (2005), had been handed down by the United
States Supreme Court on January 12, 2005. 	Booker held that the United States Sentencing
Guidelines should not be treated as mandatory in sentencing proceedings, changing the legal
landscape in sentencing. Given the short time between Booker and Mr. Gomez’s sentencing, there
was very little guidance from case law on how to apply this change in the law. Accordingly, the
Court varied downward from a low-end guideline sentence of life and imposed a 30-year custody
sentence.
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Gomez appealed to the United States Court of Appeals for the Tenth Circuit on May 25,
2005. [CR Doc. 503]. The conviction and sentence were affirmed in full by the Tenth Circuit on
January 8, 2007. [CR Doc. 565]. 	On appeal, Mr. Gomez challenged the Court’s application of
Booker, arguing that the Court treated the Guidelines as mandatory. However, the Tenth Circuit
concluded that “the District Court’s conduct, as well as its words, demonstrates that the Court did
not treat the Guidelines as mandatory.” [CR Doc. 565]. The Gomez sentencing may very well
have been the undersigned Judge’s first downward variance from the Sentencing Guidelines.
In affirming, the Tenth Circuit noted that in an evidentiary hearing prior to sentencing, the
government presented evidence that, at Gomez’s direction, more than 40,000 pounds of marijuana
had been transported from Mexico and distributed throughout the United States, that Gomez
possessed a firearm, obstructed justice by intimidating a witness, and led a criminal enterprise of
more than five people. [CR Doc. 565 at 3]. The Tenth Circuit also noted that the U.S. Sentencing
Guidelines provided for a life sentence in Gomez’s case, but, treating the Guidelines as advisory
rather than mandatory, and after considering the sentencing factors of 18 U.S.C. § 3553(a), this
Court had determined that a life sentence would be unfair to Gomez. [CR Doc. 565 at 4].
Over five and a half years elapsed before Gomez filed a pro se motion to vacate, set aside,
or modify conviction or sentence under 28 U.S.C. § 2255 on March 25, 2013. 	[CR Doc.653].
Consistent with statutes, rules, and case precedent, the Court treated the § 2255 proceeding as a
civil habeas corpus proceeding and opened Gabriel David Garcia v. United States, No. 2:13-cv-
00287-WJ-ACT (“CV”) [CV Doc. 1]. Also consistent with policy at the time, the Court “dual
docketed” 2255 filings in both the civil and criminal cases. 	The 2255 proceeding was referred,
first, to Magistrate Judge Torgerson and after reassignment, to Magistrate Judge Vidmar. 	[CV
Doc. 4, 28]. 	From there, another five years of highly contested, adversarial proceedings that
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included two interlocutory appeals to the Tenth Circuit, one petition for writ of mandamus to the
Tenth Circuit, a motion to dismiss the proceedings, and two motions to disqualify the judges and/or
transfer the case transpired. [CV Doc. 30, 43, 48, 52; CR Doc. 667, 669, 691, 696, 700].
Around the time of the first motion to disqualify, Gomez began a pattern of telephone calls
to the Clerk’s Office and Chambers. The Court entered an Order prohibiting Gomez from making
telephonic inquiries and directing him to submit any requests he had for information in writing.
[CV Doc. 44; CR Doc. 692]. The interlocutory appeals were dismissed by the Tenth Circuit for
lack of jurisdiction and the petition for mandamus was denied. 	[CV Doc. 33, 53, 55, CR Doc.
679, 699, 701].
Magistrate Judge Vidmar issued his Proposed Findings and Recommended Disposition
(PFRD) in the 2255 proceeding. The PFRD recommended (i) denial of the § 2255 motion on the
grounds that it was untimely and barred by the applicable statute of limitations and (ii) dismissal
of the proceeding with prejudice. [CV Doc. 58; CR Doc.706]. Defendant Gomez filed objections
to the PFRD. [CV Doc. 62; CR Doc. 710].2 The Court then overruled Defendant’s objections,
adopted the PFRD, and dismissed the § 2255 motion based on the bar of the statute of limitations.
[CV Doc. 68; CR Doc. 716]. By a separate Order entered August 14, 2025, [CV Doc. 69], the
Court also denied a Certificate of Appealability. 	28 U.S.C. § 2253(c)(2); Rule 11 of the Rules
Governing Section 2255 Proceedings.
Although permitted to do so by law, Defendant Gomez never filed a request for a
Certificate of Appealability in the Tenth Circuit, nor did he attempt to file any appeal from the
Court’s dismissal of his § 2255 motion on statute of limitations grounds. Instead, on August 18,
2 Defendant Gomez actually filed a pro se Motion to Strike Government’s Filings and Vacate
Magistrate Judge’s Order and Proposed Recommendation, which the Court construed as objections
to the PFRD.
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2015, Mr. Gomez filed a motion to stay the § 2255 proceedings. [CV Doc. 71; CR Doc. 719].
Specifically, Defendant requested a stay of 140 days so that he could (1) file a motion to disqualify
all of the judges for the District of New Mexico and the Tenth Circuit Court of Appeals and also
to transfer the proceedings elsewhere; (2) make a formal complaint to the Judicial Council of the
Tenth Circuit for the circuit judges' alleged misconduct; (3) make a formal complaint to the House
Judiciary Committee and Office of General Counsel for the Administrative Office of the Courts;
and (4) file a motion to “recall and vacate” the Tenth Circuit’s orders on his appeals and petition
for writ of mandamus. [CV Doc. 71; CR Doc. 719].
The Magistrate Judge denied Defendant’s Motion to Stay, nunc pro tunc, on August 19,
2015. [CV Doc. 74; CR Doc. 720]. 	The record does not indicate that Defendant ever carried
through with any of the filings or complaints identified in his motion to stay. Instead, some five
years later in 2020, several attorneys entered appearances on Gomez’s behalf. [CR Doc. 721, 722,
723, 724, 725]. However, no further filings were made in this Court by Defendant Gomez until
the counseled filings of his motion to disqualify the judge and his motion for compassionate release
in 2025. [CR Doc. 731, 733].
At the Court’s request, the United States Probation Office calculated Defendant’s
sentencing range under the current sentencing guidelines. The calculations show an offense level
of 42, a Criminal History Category of III, and a sentencing guidelines range of 360 months to life.
[CR Doc. 745 at 1-2]. Therefore, Defendant’s 2004 sentence of 30 years would still be at the low
end of the guidelines range. In addition, the record reflects that on December 24, 2024, Gomez
was released from incarceration and transferred to the Diersen Charities Residential Reentry
Center (RRC) in Albuquerque. [Doc. 733]. Defendant was transferred from BOP custody to a
residential reentry center in order to serve the remainer of his term, but on July 30, 2025, while at
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the residential reentry center, he tested positive for Spice and was returned to BOP custody. [CR
Doc. 745 at 2].
DISCUSSION
I. Sentence Modification (Generally)
After a judgment of conviction is entered, a district court’s authority to modify a sentence
is limited to specific statutory authorization. See United States v. Mendoza, 118 F.3d 707, 709
(10th Cir. 1997); United States v. McGee, 615 F.3d 1287, 1290 (10th Cir. 2010) (quoting
§ 3582(c)); United States v. Mannie, 971 F.3d 1145, 1148 (10th Cir. 2020). Nevertheless, § 3582
allows a court to reduce a defendant’s sentence in a few situations, including where circumstances
exist warranting compassionate release.
II. Compassionate Release Standard
Relevant here is subsection (c)(1)(A), called “compassionate release.” United States v.
Hemmelgarn, 15 F.4th 1027, 1029 (10th Cir. 2021) (citing United States v. Maumau, 993 F.3d
821, 830 (10th Cir. 2021)). Under § 3582(c)(1)(A), a court may reduce a term of imprisonment if
“after considering the factors set forth in section 3553(a) to the extent that they are applicable, . . .
it finds that extraordinary and compelling reasons warrant such a reduction . . . and that such a
reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
United States v. Bradley, 97 F.4th 1214, 1217 (10th Cir. 2024). Thus, the statute creates a “three-
step test.” Id. A district court must (1) “find whether extraordinary and compelling reasons warrant
a sentence reduction”; (2) “find whether such reduction is consistent with applicable policy
statements issued by the Sentencing Commission”; and (3) “consider any applicable 18 U.S.C.
§ 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one
and two is warranted in whole or in part under the particular circumstances of the case.” Id.
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(quoting United States v. Hald, 8 F.4th 932, 937–38 (10th Cir. 2021) (quoting United States v.
McGee, 992 F.3d 1035, 1042 (10th Cir. 2021))).
There’s an antecedent step, too. A defendant seeking compassionate release must satisfy
§ 3582’s administrative exhaustion requirement. Although exhaustion is a requirement, it is not
jurisdictional—rather, it is a claim-processing rule. Hemmelgarn, 15 F.4th at 1031. If (or when)
the United States invokes this claim-processing rule, a district court must enforce it. United States
v. Gieswein, 2022 U.S. App. LEXIS 20096, at *4 n.2 (10th Cir. July 21, 2022) (unpublished)
(citing Hemmelgarn, 15 F.4th at 1030–31).
Granting a motion for compassionate release requires the district court to address each step,
see Hald, 8 F.4th at 938, whereas a court “may deny compassionate-release motions when any of
the three prerequisites . . . is lacking [without] address[ing] the others.” McGee, 992 F.3d at 1043
(citation omitted). Prior to granting compassionate release, a district court must:
• 	Review for administrative exhaustion;
• 	Determine if extraordinary and compelling reasons exist;
• 	Determine if a sentence reduction is consistent with applicable policy statements; and
• 	Consider and weigh the § 3553(a) sentencing factors.
United States v. Vega-Figueroa, 139 F.4th 77, 80 (1st Cir. 2025) (explaining the “statutory
framework governing compassionate release”); United States v. Chen, 48 F.4th 1092, 1094–95
(9th Cir. 2022) (listing the “four conditions” for granting compassionate release); see also United
States v. Birch, 2023 U.S. App. LEXIS 25261, at *2 (10th Cir. Sept. 25, 2023) (unpublished).
III. Gomez’s Compassionate Release Request
Gomez served “over 22 years on a sentence of 30 years for a marijuana distribution offense
[as well as fifty-three counts of money laundering under 18 U.S.C. §§ 1956 and 1957].” [CR Doc.
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733 at 1]. And on December 24, 2024, Gomez was “released from incarceration and transferred
to the Diersen Charities Residential Reentry Center (RRC) in Albuquerque.” Id. However, within
about six months, Defendant Gomez tested positive for the illegal substance, Spice, and his release
to the residential reentry center was revoked. [CR Doc. 745].
As grounds for his compassionate release, Gomez cites to the Sentencing Commission’s
policy statement regarding: (1) unusually long and disproportionate sentences, (2) sexual abuse,
(3) physical abuse, (4) medical conditions, and (5) rehabilitation. [CR Doc. 733 at 2–4].
A. Exhaustion of administrative rights
In his motion, Gomez provided the compassionate release filing he sent to the director of
the residential reentry center [CR Doc. 733-13 at 2–37]. This request was denied on June 23, 2025
[Doc. 733-15 at 2–3]. More than thirty days have elapsed since Gomez’s request to the director,
as required. See 18 U.S.C. § 3582(c)(1)(A).
Acknowledging that exhaustion is a requirement, the United States does not appear to
dispute that Gomez exhausted his administrative remedies. [CR Doc. 739 at 4-5]. The Court is
likewise satisfied that Gomez has fully exhausted his administrative rights.
B. Extraordinary and compelling reasons
To begin, the Court acknowledges that non-retroactive changes3 in the law can be
extraordinary and compelling. See United States v. Wesley, 78 F.4th 1221, 1229 n.5 (10th Cir.
3 In United States v. Rutherford, 120 F.4th 360 (3d Cir. 2024), the Third Circuit held that USSG
§ 1B1.13(b)(6) may not be applied to allow consideration for compassionate release based on the change
in sentencing law in 18 U.S.C. § 924(c) given Congress’ declaration that Section 403 of the First Step Act
does not apply retroactively in cases in which the sentence was imposed prior to adoption. But the Supreme
Court granted certiorari. See Rutherford v. United States, No. 24-820, 2025 U.S. LEXIS 2209 (U.S. June
6, 2025). As it stands, the First, Fourth, Ninth, and Tenth Circuits allow sentencing courts to consider
nonretroactive changes. The Third, Fifth, Sixth, Seventh, Eighth, and D.C. Circuits forbid such
consideration.
Suffice it to say, what qualifies as “extraordinary and compelling” will expand—or narrow—within
the next year. The specific question presented is “Whether a district court may consider disparities created
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2023). But here, there has been no change in the law. Marijuana distribution is still illegal. As
such, the Court does not find that purported changes in the legal landscape with respect to
marijuana are extraordinary and compelling. Neither have numerous courts of appeals. See, e.g.,
United States v. Rivera, 2022 U.S. App. LEXIS 27160, at *3–4 (3d Cir. Sept. 28, 2022)
(unpublished and per curiam); United States v. Tamez, 2023 U.S. App. LEXIS 7732, at *1 (5th
Cir. Mar. 31, 2023) (unpublished and per curiam) (“[C]hanging attitudes toward marijuana did not
amount to extraordinary and compelling reasons warranting early release.”); United States v.
Simpson, 2024 U.S. App. LEXIS 23165, at *5 (6th Cir. Sept. 11, 2024) (unpublished); United
States v. McIntosh, 2023 U.S. App. LEXIS 11706, at *1 (7th Cir. May 12, 2023) (unpublished).
Even so, a district court possesses latitude to ensure that sentences for drugs are not excessive. Cf.
Spears v. United States, 555 U.S. 261, 264 (2009) (citing Kimbrough v. United States, 552 U.S.
85 (2007) (recognizing a court’s authority to vary in crack cases based on policy disagreements
and excessive sentences)).
The changing societal views regarding marijuana do not support a finding of extraordinary
or compelling circumstances in this case and the sentence is not excessive, in part because it is a
sentence not only for drugs, but also for numerous counts of money laundering.
C. Applicable policy statements
Defendant Gomez bases his arguments on applicable policy statements. The Sentencing
Commission’s policy statements do not support and, instead, lend further grounds for denial. The
policy statement for compassionate release lists six circumstances that qualify as “extraordinary
by the First Step Act’s prospective changes in sentencing law when deciding if ‘extraordinary and
compelling reasons’ warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).”
Although not directly on-point in Gomez’s case, if a court can consider upcoming changes in
sentencing law under § 3582(c)(1), that provides support for the notion that compassionate release is a
catch-all, of sorts, for the more specific § 3582(c)(2) provision.
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and compelling reasons.” See USSG §§ 1B1.13(b)(1)–(6). Relevant here are subparagraphs (b)(1),
(b)(3), and (b)(6), listing the reasons for compassionate release as (1) family circumstances, (2)
his health, (3) disparity in sentencing, and (4) rehabilitation.
1. 	Unusually long sentence under USSG § 1B1.13(b)(6)
Defendant Gomez seeks a reduction of his 30-year sentence on the grounds that he received
an unusually long and disproportionate sentence. [CR Doc. 733 at 6-8]. 	Defendant bases his
argument on §1B1.13(b)(6) of the Sentencing Guidelines. 	Section 1B1.13(b)(6) states that a
change in the law may be considered extraordinary or compelling:
“only where such change would produce a gross disparity between
the sentence being served and the sentence likely to be imposed
at the time the motion is filed . . .”
The sentence that Defendant is serving is 360 months (30 years), which was a downward
departure from the life sentence that could have been imposed under the Guidelines in effect at
the time of sentencing. [CR Doc. 500]. The record reflects that, if his sentence was imposed
based on the current Sentencing Guidelines, the Guideline range still would be 360 months to
life. [CR Doc. 745 at 1-2]. Therefore, no gross disparity exists between the sentence Gomez is
serving and the sentence that would likely be imposed now, and the sentence does not present
extraordinary and compelling reasons for a sentence reduction under §1B1.13(b)(6).4
4 The parties debate the validity of §1B1.13 (b)(6) and the case of United States v. Bricker, 135
F.4th 427 (6 th Cir. 2025) in their filings. [CR Doc. 739 at 6-9; CR Doc. 742 at 3-6]. However,
in light of the fact that §1B1.13 (b)(6)’s requirements are not met in this case, the Court need not
decide the issue of the validity of §1B1.13 (b)(6).
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Defendant also argues that one of Gomez’s many co-defendants, Charles Roybal, died in
prison a few years after a life sentence was imposed and therefore, in fact served less time in
prison than Gomez has. [CR Doc. 731 at 1-2]. However, as counsel likewise observes, Gomez
received a more lenient sentence than Roybal, in part because of Gomez’s acceptance of
responsibility. [Id.; CR. Doc. 733 at 6–7]. Roybal died in custody on February 27,
2006 — after Gomez was sentenced. [CR Doc. 538 at 1]. Therefore, to the extent that counsel
suggests that Roybal’s death after only a few years in prison means that Roybal was given a
shorter sentence that Gomez, that argument cannot seriously be considered for the simple reason
that Roybal died after Gomez was sentenced.
2. Victimization under USSG §§ 1B1.13(b)(4)(A) & (B)
Next, Gomez claims that he was the victim of sexual abuse and physical abuse [CR Doc.
733 at 37–43]. If accurate and supported by the requisite evidence, these allegations fit into USSG
§ § 1B1.13(b)(4)(A) & (B).
Although Defendant Gomez argues the issue, the proof is lacking, here. Gomez provides
his own Affidavit [CR Doc. 742-1] but does not support the Affidavit with any documentary
records or evidence. The records submitted refer only to “alleged” sexual abuse. [CR Doc. 733 at
Exhibit P]. 	The policy statement says: “For purposes of this provision, the misconduct must be
established by a conviction in a criminal case, a finding or admission of liability in a civil case, or
finding in an administrative proceeding . . . .” USSG § 1B1.13(b)(4).
As the moving party, the Defendant bears the burden of establishing that he is eligible for
a sentence reduction. United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016); United States v.
Green, 764 F.3d 1352, 1356 (11th Cir. 2014). But there are no records to support relief. See CR
Doc. 733 at 38 n.33. Defendant has provided no evidence of a conviction in a criminal case, a
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finding or admission of liability in a civil case, or finding in an administrative proceeding, and the
record does not support finding, that Gomez was a “victim of abuse.”
3. Medical circumstances under USSG § 1B1.13(b)(1)(B)
Defendant Gomez contends that his medical condition supports granting of a sentence
reduction. He contends he suffers from cervical spine degeneration, chronic pai, migraines, severe
neck pain, numbness in both arms, obesity, and difficulties breathing. [CR Doc. 733 at 43-44].
However, Defendant provides only a letter from a nurse practitioner to support his claims and the
record does not demonstrate that his physical ailments prevent him from working or rehabilitating
in a prison environment. [CR Doc. 733 at Exhibit L]. Moreover, the medical conditions he relies
on are not the serious or terminal kinds of medical conditions contemplated by USSG
§ 1B1.13(b)(1)(B).
Gomez’s medical circumstances do not rise to the level of extraordinary and compelling
either. If combined with the purported reason for the “physical and medical conditions,” see infra
¶ III.C.2, the Court thinks the policy statement’s criteria may be met. But again, the Court
determined that Gomez cannot establish victimization—as such, the Court also declines to find
that his medical circumstances are extraordinary and compelling.
4. Rehabilitation under USSG § 1B1.13(d)
Rehabilitation alone isn’t extraordinary and compelling. Maumau, 993 F.3d at 832 (quoting
28 U.S.C. § 994(t)); see also USSG § 1B1.13(d). Nevertheless, rehabilitation can be considered
“in combination with other circumstances.” Wesley, 78 F.4th at 1231 n.8.
Gomez maintains—and the United States does not dispute—that during the service of his
sentence he: (1) earned his GED, (2) completed nearly fifty educational/vocational programs, and
(3) now has “gainful employment.” [CR Doc. 733 at 44–45]. Gomez also provided a detailed
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release plan, see CR Doc. 733-3 at 2–3, which bolsters the weight of his rehabilitation. Cf. United
States v. Robinson, 2023 U.S. App. LEXIS 22921, at *7 (Aug. 30, 2023) (unpublished)
(“[R]ehabilitation plus the post-release plan conceivably might be enough . . . .” (citing Maumau,
933 F.3d at 832)).5
However, although admirable, completing educational and vocational programming alone,
does not support Gomez’s request. 	Defendant Gomez’s BOP disciplinary record, including the
revocation of his release to a residential reentry center based on testing positive for an illegal
substance, does not demonstrate rehabilitation in this case. Maumau, 993 F.3d at 832
5. Changes in the law under USSG § 1B1.13(c)
An amendment to the Guidelines Manual “that has not been made retroactive” shall not be
considered when “determining whether an extraordinary and compelling reason exists.” USSG
§ 1B1.13(c). That being said, if a defendant established “extraordinary and compelling reasons
warrant a sentence reduction . . . a change in the law . . . may be considered.” Id.
So even though a motion under § 3582(c)(2) is the appropriate vehicle for a sentence
reduction based on retroactive Guideline changes, such changes can be “extraordinary and
compelling” under § 3582(c)(1)(A). See United States v. Craig, No. 12-cr-20141, 2024 U.S. Dist.
LEXIS 59435, at *7–8 (D. Kan. Apr. 1, 2024).
Back in 2014, the United States Sentencing Commission adopted Amendment 782 which
lowered the recommended penalties for most drug crimes by reducing the base offense levels in
USSG § 2D1.1 by two levels. Amendment 782 reduced the base offense level for offenses
5 The Tenth Circuit is not alone in reasoning that a defendant’s release plan can be combined with
rehabilitation to establish extraordinary and compelling reasons. See, e.g., United States v. Alicea, 2023
U.S. App. LEXIS 14575, at *7–8 (3d Cir. June 12, 2023) (unpublished); United States v. Pizer, 2024 U.S.
App. LEXIS 10060, at *3 (4th Cir. Apr. 25, 2024) (unpublished and per curiam); United States v. Moore,
2024 U.S. App. LEXIS 5010, at *3–4 (7th Cir. Mar. 1, 2024) (unpublished).
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involving at least 10,000 but less than 30,000 kilograms of marijuana6 from 36 to 34. The
Commission made this Amendment retroactive.
The policy statement speaks in the negative—and essentially explains when changes in the
law can’t be considered. USSG §§ 1B1.13(b)(6) & (c). Generally speaking, a court cannot grant
compassionate release: (1) solely for a change in the law, or (2) non-retroactive changes to the
Guidelines. Gomez contends that the rescheduling of marijuana from a Schedule I to a Schedule
III controlled substance is a change in the law that supports a reduction in his sentence. [Doc. 748].
However, an Executive Order is not a change in the law and does not alter his sentencing range.
See, e.g., Chaidez v. United States, 568 U.S. 342 (2013).
In all of the briefing that has been provided to the Court in this case, Defendant Gomez has
never pointed to any actual change in the law, much less to a retroactive change, sufficient to
support granting compassionate release. No change in the law supports any sentence reduction in
this case.
D. Sentencing factors under § 3553(a)
Even in “extraordinary and compelling” cases, the Court must consider the § 3553(a)
factors to determine whether a sentence modification is warranted. See 18 U.S.C. § 3582(c)(1)(A)
(citing § 3553(a)). Given this mandate, the Court now considers (1) the nature and circumstances
of the offense; (2) Gomez’s history and characteristics; (3) the sentence needed to reflect the
seriousness of the offense, deter future criminal conduct, and protect the public from further crimes
of the defendant; and (4) the need to avoid unwarranted sentence disparities.
6 Although a very minor point, the drug quantity table spells the controlled substance as “marihuana.”
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The offense Gomez committed resulted in the distribution of more than 10,000 kilograms
of marijuana [CR Doc. 737 at ¶ 130]. The money laundering charges are also serious because they
further enabled Gomez’s illegal drug trade.
Most concerning to the Court is the fact that Gomez possessed firearms, see CR Doc. 487
at 7; CR Doc. 737 at ¶ 131, and engaged in obstructive conduct. See CR Doc. 487 at 8; CR Doc.
737 at ¶ 137. No doubt, “obstructive criminal conduct as an organizer of marijuana-trafficking”
has been determined to weigh against the granting of compassionate release. United States v.
Moreno, 2025 U.S. App. LEXIS 18035, at *2 (5th Cir. July 21, 2025) (unpublished and per
curiam). The Court concludes that consideration of the § 3553(a) factors does not warrant a
sentence reduction in this case.
IV. Potential Habeas Issue
Gomez also alleges that he is due “375 additional days” of credit for time served in “state
prison on related [] marijuana offenses.” [CR Doc. 733 at 1, 8–10]. This may be true, but this
Court cannot award pre-sentence time. See, e.g., United States v. Wilson, 503 U.S. 329, 335 (1992);
United States v. Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994); Reed v. United States, 262 F. App’x
114, 116 (10th Cir. 2008) (unpublished); United States v. Sines, 533 F. App’x 864, 865 (10th Cir.
2013) (unpublished). “Only the Attorney General through the Bureau of Prisons has the power to
grant sentence credit in the first instance.” Jenkins, 38 F.3d at 1144. Because there has been no
§ 3585(b) determination, the matter is not ripe for review—meaning this Court does not have
jurisdiction to grant him sentence credit under § 2241, § 2255, or § 3582(c).
CONCLUSION
At the time of sentencing, the Court varied downward from a life sentence based on its
compassionate conclusion that life imprisonment would be unfair to Defendant Gomez. As such,
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Gomez has already received a significant reduction in sentence. Gomez’s record in this case does
not establish any extraordinary or compelling reasons that would warrant a further reduction in
sentence and a calculation of the sentencing range, even under the current Guidelines, still places
his existing 30-year sentence at the bottom of the Guideline range. Therefore, the Court denies
Defendant’s Motion for a Sentence Reduction.
IT IS THEREFORE ORDERED that Gomez’s Motion for a Reduction of Sentence [CR
Doc. 733] is DENIED.
IT IS FURTHER ORDERED that Gomez’s request to reduce his “five-year term of
supervised release . . . to a term of one year” [CR Doc. 733 at 1] is DENIED. This decision may,
of course, be reframed as a request for early termination after “the expiration of one year of
supervised release.” 18 U.S.C. § 3583(e)(1).
LAST, IT IS ORDERED that Defendant Gomez’s Unopposed Motion to Stay [CR Doc.
746] is DENIED as moot.
IT IS SO ORDERED.
/s/___________________________________
WILLIAM P. JOHNSON
SENIOR UNITED STATES DISTRICT JUDGE
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