USA v. Zarate-Suarez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Criminal Case No. 18-cr-00266-PAB-2
UNITED STATES OF AMERICA,
Plaintiff,
v.
2. EDWIN ROMAN-ACEVEDO,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
The matter before the Court is the Motion for Reduction in Sentence Pursuant to
18 U.S.C. § 3582(c)(2) [Docket No. 473], filed by defendant Edwin Roman-Acevedo. 1
The government responded, Docket No. 478, and Mr. Roman-Acevedo replied. Docket
No. 480.
On November 8, 2018, Mr. Roman-Acevedo pled guilty to one count of
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii). Docket No. 180 at 2. On April 19, 2019, the Court
sentenced the defendant. Docket No. 303 at 1. At sentencing, the Court found the total
offense level to be 35 and determined Mr. Roman-Acevedo’s Criminal History Category
to be V, which resulted in a sentencing range of 262 to 327 months imprisonment. See
Docket No. 278 at 15, 20, 26. The Court granted Mr. Roman-Acevedo’s motion for a
sentencing variance and sentenced him to 120 months imprisonment followed by 5
1 Because Mr. Roman-Acevedo is proceeding pro se, the Court construes his
filings liberally without serving as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
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years of supervised release. Docket No. 303 at 2; Docket No. 309 at 2-3. Mr. Roman-
Acevedo is currently incarcerated at FCI Florence, a medium-security federal
penitentiary in Colorado. See Federal Bureau of Prisons, Inmate Locator,
https://www.bop.gov/inmateloc/. Mr. Roman-Acevedo’s projected release date is
January 9, 2027. Id.
On May 2, 2024, Mr. Roman-Acevedo filed a pro se motion for a reduction in his
sentence based on Amendment 821 to the Sentencing Guidelines. Docket No. 473.
The government filed a response opposing Mr. Roman-Acevedo’s motion on August 21,
2024. Docket No. 478. Mr. Roman-Acevedo replied on August 28, 2024. Docket No.
480.
Generally, a federal court may not alter a term of imprisonment once it has been
imposed. See Dillon v. United States, 560 U.S. 817, 824 (2010); 18 U.S.C. § 3582(c).
However, under 18 U.S.C. § 3582(c)(2), a court may reduce a defendant’s sentence
when the defendant “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).” 18 U.S.C. § 3582(c)(2). Section 3582(c)(2)
“establishes a two-step inquiry.” Dillon, 560 U.S. at 826. “At step one, § 3582(c)(2)
requires the court to follow the Commission’s instructions in [USSG] § 1B1.10 to
determine the prisoner’s eligibility for a sentence modification and the extent of the
reduction authorized.” Id. at 827. “At step two of the inquiry, § 3582(c)(2) instructs a
court to consider any applicable § 3553(a) factors and determine whether, in its
discretion, the reduction authorized by reference to the policies relevant at step one is
warranted in whole or in part under the particular circumstances of the case.” Id.
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On November 1, 2023, the Sentencing Commission adopted Amendment 821 to
the Sentencing Guidelines in order to “make[ ] targeted changes to reduce the impact of
providing additional criminal history points for offenders under a criminal justice
sentence (commonly known as “status points”), to reduce recommended guideline
ranges for offenders with zero criminal history points under the guidelines (“zero-point
offenders”), and to recognize the changing legal landscape as it pertains to simple
possession of marihuana offenses.” See U.S.S.G., Supp. to App. C., Amend. 821 (U.S.
Sentencing Comm’n 2023). Before November 2023, the Sentencing Guidelines
assessed two criminal history points, known as “status points,” for an offense committed
“while under any criminal justice sentence, including probation, parole, supervised
release, imprisonment, work release, or escape status.” United States v. Espinoza-
Pena, 2024 WL 1675672, at *1 (D.N.M. Apr. 18, 2024) (citing U.S.S.G. § 4A1.1(d)
(2022)). In Part A of Amendment 821, the Sentencing Commission altered the “status
points” provision such that a person who has seven or more criminal history points now
receives only one additional “status point,” instead of two. Id. In addition, a person with
six or fewer criminal history points now receives no status points. Id. Amendment 821
applies retroactively. Id.; United States v. Stites, 2024 WL 3535120, at *1 (D. Kan. July
24, 2024).
Mr. Roman-Acevedo maintains that Part A of Amendment 821 altered his
sentencing guideline range by reducing his status points. See Docket No. 473 at 1;
Docket No. 480 at 1. He argues that the reduction in his status points means that he
has a criminal history category of IV. Docket No. 480 at 1. The government agrees that
Amendment 821 applies to Mr. Roman-Acevedo, but disputes that it alters his guideline
range. Docket No. 478 at 1. The Court agrees that Mr. Roman-Acevedo’s total criminal
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history points have changed from 11 to 10 through the retroactive application of
Amendment 821. Mr. Roman-Acevedo received 9 criminal history points for offenses
committed between 2016 and 2017. See Docket No. 278 at 15–20. He further received
a two-level enhancement for committing the offense in this case while under a criminal
justice sentence. Id. at 20. Amendment 821 modifies this two-level enhancement to a
one-level enhancement, resulting in 10 total criminal history points. However, Mr.
Roman-Acevedo’s Criminal History Category remains V, which applies to defendants
with 10, 11, or 12 criminal history points. See U.S.S.G. ch. 5, pt. A (2023). Accordingly,
Mr. Roman-Acevedo’s amended guideline range is 262 to 327 months. This is the
same guideline range that applied at sentencing. Moreover, Mr. Roman-Acevedo was
sentenced below the guideline range to 120 months imprisonment. Docket No. 303 at
2. Accordingly, the Court finds that Amendment 821 does not make Mr. Roman-
Acevedo eligible for a reduction in his sentence.
For the foregoing reasons, it is
ORDERED that the Motion for Reduction in Sentence Pursuant to 18 U.S.C.
§ 3582(c)(2) [Docket No. 473] is DENIED.
DATED January 10, 2025.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
______________________________	_ __________	____	___	_____	_____
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