USA v. Nishida

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JERRE NISHIDA,
Defendant.
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Cr. No. 19-00107 HG-1
ORDER DENYING DEFENDANT’S MOTION TO REDUCE SENTENCE BASED ON
AMENDMENT 821 TO THE UNITED STATES SENTENCING GUIDELINES PURSUANT
TO 18 U.S.C. § 3582(c)(2) (ECF No. 74)
Defendant Jerre Nishida, proceeding pro se, seeks a
reduction of her term of imprisonment based upon Amendment 821 to
the United States Sentencing Guidelines pursuant to 18 U.S.C. §
3582(c)(2).
Amendment 821 altered the sentencing guidelines of certain
zero-point offenders under Section 4C1.1 and changed the
calculation of “status points” under United States Sentencing
Guideline § 4A1.1(e).
Defendant is not eligible for a reduction in sentence.
Defendant was already sentenced to the statutory mandatory
minimum sentence. The changes made by Amendment 821 do not alter
Plaintiff’s sentencing guidelines and do not allow a reduction in
her sentence below the statutory mandatory minimum.
Defendant’s Motion to Reduce Sentence (ECF No. 74) is
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DENIED.
PROCEDURAL HISTORY
I. Indictment, Guilty Plea, & Sentencing
On August 15, 2019, the grand jury returned an Indictment,
charging Defendant with one count: Possession With Intent to
Distribute Methamphetamine in violation of 21 U.S.C. § 841(a)(1)
and 841(b)(1)(A). (ECF No. 1).
On December 26, 2019, Defendant pled guilty to the sole
count in the Indictment. (ECF No. 18).
Defendant’s guilty plea was made pursuant to a Memorandum of
Plea Agreement. (ECF No. 21).
On February 28, 2020, the Court accepted Defendant’s plea of
guilty and adjudged her guilty. (ECF No. 22).
On April 17, 2020, the Probation Officer filed the
Presentence Investigation Report. (ECF No. 27).
The Presentence Report calculated Defendant’s base offense
level at 30 based on the amount of “ice” for which Defendant was
responsible. (Id. at ¶ 22).
Defendant received a two-level decrease for acceptance of
responsibility and an additional one-level decrease for timely
entering into a guilty plea. (Id. at ¶¶ 29-30).
Defendant’s total offense level was 27. (Id. at ¶ 31).
In calculating Defendant’s criminal history, the Probation
Officer determined that Defendant was previously convicted of
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Conspiracy to Distribute and Possess with Intent to Distribute 50
Grams or More of Methamphetamine and Marijuana in the United
States District Court for the District of Hawaii in Cr. No. 13-
0021SOM-05. (Id. at ¶ 36).
Defendant received 3 criminal history points for that
conviction. (Id.)
Defendant committed the instant offense when she was on
supervised release for her conviction in Cr. No. 13-0021SOM-05.
(Id.) Defendant received 2 additional “status points” as a
result. (Id. at ¶ 38).
Defendant’s total criminal history score was 5 with a
criminal category of III. (Id. at ¶ 39).
Defendant’s sentencing guideline range was 120 months
imprisonment because it was the statutory mandatory minimum
sentence. (Id. at ¶ 90).
On February 25, 2021, the Court sentenced Defendant to 120
months imprisonment and 5 years of supervised release. (ECF No.
45).
On January 31, 2023, the Court issued an Amended Judgment,
modifying her conditions of supervised release. (ECF No. 66).
II. Defendant’s Motion To Reduce Sentence
On March 19, 2024, Defendant, proceeding pro se, filed a
Motion to Reduce Sentence Under Amendment 821 to the United
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States Sentencing Guidelines Pursuant to 18 U.S.C. § 3582(c)(2).
(ECF No. 74).
On March 21, 2024, the Court referred the Motion to the
Federal Public Defender’s Office to see if it would represent the
Defendant in seeking a reduction in sentence. (ECF No. 75).
On March 28, 2024, the Federal Public Defender’s Office
declined to represent the Defendant. (ECF No. 76).
Also on March 28, 2024, the Court issued a briefing
schedule. (ECF No. 77).
On April 26, 2024, the Government filed its Statement of No
Opposition to Defendant’s Motion. (ECF No. 79).
On April 27, 2024, the Government filed an Amended Response
Opposing Defendant’s Motion. (ECF No. 80).
The Court elects to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.1(c).
STANDARD OF REVIEW
Section 3582(c)(2) of Title 18 of the United States Code
permits a court to reduce a term of imprisonment if the sentence
was based on a sentencing range subsequently lowered by the
United States Sentencing Commission.
The Sentencing Commission amended United States Sentencing
Guideline § 1B1.10 to provide for a reduction in certain terms of
imprisonment as a result of amended guideline ranges provided for
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in Amendment 821, which became effective on February 1, 2024.
ANALYSIS
Defendant’s Motion, construed liberally, seeks a reduction
in sentence based on Amendment 821 to the United States
Sentencing Guidelines pursuant to 18 U.S.C. § 3582(c)(2).
Defendant is not eligible for a reduction in her term of
imprisonment because she has not established that her sentencing
guidelines would be lower pursuant to Amendment 821.
Amendment 821 made two significant changes in the Sentencing
Guidelines and the calculation of criminal history points.
First, Subpart B of Amendment 821 created a new guideline
found in U.S.S.G. § 4C1.1, which provides for a decrease of two
offense levels for certain zero-point offenders who meet its
requirements, as follows:
(a) Adjustment.—If the defendant meets all of the
following criteria:
(1) the defendant did not receive any criminal
history points from Chapter Four, Part A;
(2) the defendant did not receive an adjustment
under §3A1.4 (Terrorism);
(3) the defendant did not use violence or
credible threats of violence in connection
with the offense;
(4) the offense did not result in death or
serious bodily injury;
(5) the instant offense of conviction is not a
sex offense;
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(6) the defendant did not personally cause
substantial financial hardship;
(7) the defendant did not possess, receive,
purchase, transport, transfer, sell, or
otherwise dispose of a firearm or other
dangerous weapon (or induce another
participant to do so) in connection with the
offense;
(8) the instant offense of conviction is not
covered by §2H1.1 (Offenses Involving
Individual Rights);
(9) the defendant did not receive an adjustment
under §3A1.1 (Hate Crime Motivation or
Vulnerable Victim) or §3A1.5 (Serious Human
Rights Offense); and
(10) the defendant did not receive an adjustment
under §3B1.1 (Aggravating Role) and was not
engaged in a continuing criminal enterprise,
as defined in 21 U.S.C. §848;
decrease the offense level determined under Chapters
Two and Three by 2 levels.
U.S.S.G. § 4C1.1(a) (emphasis added).
Here, Defendant does not qualify for a reduction as a
certain zero-point offender pursuant to Section 4C1.1(a).
Defendant was not a zero-point offender as she received criminal
history points at sentencing based on her prior conviction in
United States v. Jerre Nishida, Cr. No. 13-0021 SOM-05.
(Presentence Report at ¶ 36, ECF No. 27).
Section 4C.1 does not apply to lower Defendant’s sentencing
guidelines.
Second, Subpart A of Amendment 821 limits the overall
criminal history impact of “status points,” which are additional
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criminal history points given to a defendant for having committed
an offense while under a criminal justice sentence, including
probation, parole, supervised release, imprisonment, work
release, or escape status. See U.S.S.G. § 4A1.1(e).
Previously, a defendant who committed the instant offense
while under any criminal justice sentence, including supervised
release, received two additional criminal history points.
At sentencing, Defendant received two status points in
calculating her criminal history points because Defendant
committed the instant offense while under supervised release for
her conviction in United States v. Jerre Nishida, Cr. No. 13-0021
SOM-05. (Presentence Report at ¶ 36, ECF No. 27).
Amendment 821 altered Section 4A1.1 of the United States
Sentencing Guidelines to eliminate such status points for any
defendant, such as Defendant Nishida, who otherwise had six or
fewer criminal history points. United States v. Valle-Hurtado,
2024 WL 1299771, *2 (D. Ariz. Mar. 27, 2024).
The changes in the sentencing guidelines under Amendment 821
for the calculation of status points would lower Defendant’s
criminal history category calculation. The changes made by
Amendment 821, however, do not alter Defendant’s sentencing
guideline calculation of 120 months imprisonment.
The Court is not permitted to sentence Defendant below the
mandatory minimum term of imprisonment provided by the statute
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pursuant to Amendment 821. United States v. Ward, 2024 WL
1053765, *2 (D. Nev. Mar. 11, 2024). A reduction in the
defendant's term of imprisonment below the mandatory statutory
minimum sentence is not authorized pursuant to 18 U.S.C. §
3582(c)(2). U.S.S.G. §§ 1B1.10(a)(2)(B); 1B1.10 cmt.1(A); United
States v. Griego, 2024 WL 841092, *2 n.2 (D. Nev. Feb. 27, 2024).
In sum, the changes to the United States Sentencing
Guidelines based on Amendment 821 do not lower Defendant’s
sentencing guideline of 120 months imprisonment. Defendant is
not entitled to a reduction in her term of imprisonment pursuant
to 18 U.S.C. § 3582(c)(2).
CONCLUSION
Defendant’s Motion to Reduce Sentence based upon Amendment
821 to the United States Sentencing Guidelines pursuant to 18
U.S.C. § 3582(c)(2) (ECF No. 74) is DENIED.
IT IS SO ORDERED.
DATED: May 3, 2024, Honolulu, Hawaii.
United States v. Jerre Nishida, Cr. No. 19-00107 HG-1, ORDER
DENYING DEFENDANT’S MOTION TO REDUCE SENTENCE BASED ON AMENDMENT
821 TO THE UNITED STATES SENTENCING GUIDELINES PURSUANT TO 18
U.S.C. § 3582(c)(2) (ECF No. 74)
8
tates District Judge
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