USA v. RAZO et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARK RAZO, 	)
)
Petitioner, 	)
) 	No. 1:11-cr-00184-JAW-1
v. 	)
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
ORDER ON MOTION FOR REDUCTION PURSUANT TO AMENDMENT 821
On September 16, 2013, the Court sentenced Mark Razo to a term of three
hundred months of incarceration, six years of supervised release, and no fine for
engaging in a conspiracy to distribute controlled substances. J. (ECF No. 199). That
same day, the Court sentenced Mr. Razo to a concurrent term of forty-eight months
of incarceration, one year of supervised release, and no fine for three counts of
unlawful use of a communication facility. Id. The Court also imposed a total of $400
in special assessments on all four counts. Id.
On 	November 	1, 	2023, 	amendments 	to 	the 	United 	States 	Sentencing
Guidelines (U.S.S.G.) came into effect. 	On November 27, 2023, Mr. Razo filed a
motion to reduce his sentence pursuant to Amendment 821, which also sought the
appointment of counsel. 	Def.’s Mot. for Reduction of Sentence Pursuant to Am. 821
and for Appointment of Counsel (ECF No. 329) (Def.’s Mot.). On November 29, 2023,
the United States Probation Office reviewed Mr. Razo’s sentence and determined that
he is not eligible for a sentencing reduction under Amendment 821. Report Pursuant
to Am. 821 to the United States Sentencing Guidelines for Ineligible Def. (ECF No.
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331) (emphasis in original). 	On December 21, 2023, Mr. Razo filed another motion
for appointment of counsel and specifically asked the Court to appoint Attorney
Jamesa Drake. 	Mot. for Appointment of Counsel at 1 (ECF No. 332) (Mot. for
Appointment).
The Court is issuing this brief order to explain to Mr. Razo why the Court is
not reducing his sentence and not granting his request for appointed counsel.
At Mr. Razo’s September 16, 2013 sentencing hearing, the Court made its
guideline calculations and determined that his total offense level was 42 and his
criminal history category was Category VI, resulting in a guideline sentence of 360
months to life imprisonment, six years of supervised release, a fine from $25,000 to
$20,000,000, and a $100 special assessment per count for a total of $400. Statement
of Reasons, Attach. 1, Findings Affecting Sentencing (ECF No. 200). 	Under the
Court’s guideline calculation, Mr. Razo received a guideline enhancement of two
levels under U.S.S.G. § 4A1.1(d) for having committed the instant offenses while
under a criminal justice sentence. 	PO Report, Attach. 3, Revised Presentence
Investigation Report ¶ 27 (ECF No. 304) (PSR). The Court also determined that Mr.
Razo was a career offender and under U.S.S.G. § 4B1.1(b), his criminal history
category was VI. Id. ¶ 28.
One part of Amendment 821, which is the amendment that occasioned Mr.
Razo’s motion, is U.S.S.G. § 4A1.1(e).1 This provision changes the number of points
1 	The other part of Amendment 821, which allows for a two-level reduction for so-called Zero-
Point Offenders, see U.S.S.G. § 4C1.1(a), does not apply to Mr. Razo, because he had eight criminal
history points before the career offender provision applied, and therefore he was not under any
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added to a defendant’s criminal history score if the defendant committed the new
offense while under a criminal justice sentence. See U.S.S.G. § 4A1.1(e). At the time
of his sentencing hearing, two points were added to Mr. Razo’s criminal history score
under the former U.S.S.G. § 4A1.1(d) because he was under a criminal justice
sentence when he committed these federal crimes. Under Amendment 821, this two-
level enhancement would potentially be reduced from two to one, meaning that Mr.
Razo’s overall criminal history score would decrease by one point. 	See U.S.S.G. §
4A1.1(e). Accordingly, Mr. Razo might have been eligible for a one-level Amendment
821 reduction, but for another provision of the guidelines.
As the Presentence Investigation Report confirms, Mr. Razo was a career
offender under U.S.S.G. § 4B1.1(b) at the time of his sentencing hearing. Under that
provision, the Court was required to increase Mr. Razo’s criminal history category to
VI regardless of his overall criminal history score. 	U.S.S.G. § 4B1.1(b) (“A career
offender’s criminal history category in every case under this subsection shall be
Category VI”). Thus, unfortunately for Mr. Razo, he does not fit within the provision
of U.S.S.G. § 4A1.1(e) because he was a career offender under U.S.S.G. § 4B1.1(b)
and, therefore, the reduction of one criminal history point before application of the
career offender provision had no effect on his guideline calculation.
In his newly filed motion for appointment of counsel, Mr. Razo asserts that he
no longer qualifies as a career offender. Mot. for Appointment at 1. In the PSR, the
PO concluded that Mr. Razo was a career offender based on the nature of his offenses
calculation a Zero-Point Offender. 	Mr. Razo is not eligible for a reduction under this provision of
Amendment 821.
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and his prior convictions. 	PSR ¶ 21. 	In maintaining that he no longer qualifies for
career offender status, Mr. Razo is presumably referring to the argument he put
forward in his August 8, 2022 amended motion for compassionate release. 	See Am.
Mot. for Compassionate Release (ECF No. 312) (Mot. for Compassionate Release). But
on May 3, 2023, the Court concluded that even if Mr. Razo would not now qualify as
a career offender, his guideline range would have remained the same. Order on Am.
Mot. for Compassionate Release (ECF No. 322) (Compassionate Release Order).
As the Court observed in its May 3, 2023 order, Mr. Razo had two prior
convictions at the time of his sentencing: a controlled substance offense for which he
had been sentenced to three years of incarceration and an evading officer against
traffic offense for which he had been sentenced to sixteen months of incarceration.
Id. at 13 (citing PSR ¶¶ 25-26). Mr. Razo argued that the evading offense would no
longer count as a predicate offense for career offender status under Amendment 798
to the Sentencing Guidelines, which became effective on August 1, 2016, nearly three
years after Mr. Razo was sentenced. Id. at 13 (citing Mot. for Compassionate Release
at 13-14); U.S.S.G. App. C, amend. 798 (Supp. Nov. 1, 2016). 	The Court ultimately
declined to reach the merits of Mr. Razo’s argument, concluding instead that Mr.
Razo’s status as a career offender “does not matter, because he would have faced the
same guideline sentence range regardless of whether he qualified for career offender
status.” Compassionate Release Order at 14.
The Court sees no reason to revisit the conclusions in its May 3, 2023 order,
even in light of Amendment 821. 	In 2017, the First Circuit held that Amendment
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798, which relaxed the range of offenses subject to career offender status, was not
retroactive,2 and observed that “sentencing courts are not mandated to take into
consideration non-retroactive substantive amendments to the Guidelines.” 	United
States v. Wurie, 867 F.3d 28, 35, 37 (1st Cir. 2017). Thus, Mr. Razo’s career offender
argument fails from the start because under First Circuit law, Amendment 798 does
not apply to him since it was not in effect when he was sentenced. As this Court owes
allegiance to the rulings of the Court of Appeals for the First Circuit, the Court must
obey the First Circuit’s rulings on issues of law under the doctrine of stare decisis.
United States v. Moore-Bush, 963 F.3d 29, 36 (1st Cir. 2020); Eulitt ex rel. Eulitt v.
Me. Dep’t of Educ., 386 F.3d 344, 348 (1st Cir. 2004); Gately v. Massachusetts, 2 F.3d
1221, 1226 (1st Cir. 1993).
Mr. Razo’s claim fails for another reason. The Wurie Court left the door open
a 	crack 	for 	district 	courts 	to 	consider 	non-retroactive 	sentencing 	guideline
amendments on resentencing. 867 F.3d at 37 (“[S]entencing courts are not mandated
to take into consideration non-retroactive substantive amendments to the Guidelines
that post-date a defendant’s sentencing”). Thus, it is prudent to determine whether
Amendment 798 would have affected Mr. Razo’s guideline calculations if it had been
effective as of the date of his sentencing hearing. 	However, even assuming, for the
sake of argument, that Mr. Razo would not qualify as a career offender under
Amendment 798, his guideline range would remain unchanged, even after the
2 	Referring to Amendment 798 and citing United States v. Strevig, 663 F. App’x 908, 913-14
(11th Cir. 2016), the First Circuit in Wurie wrote that “[t]he Sentencing Commission can opt to make
amendments retroactive, but it chose not to do so in this case.” Wurie, 867 F.3d at 35 & n.7.
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enactment of Amendment 821. 	If Mr. Razo were not a career offender, his criminal
history category would decrease from VI to IV based on his eight criminal history
points. The new U.S.S.G. § 4A1.1(e), enacted under Amendment 821, would further
decrease Mr. Razo’s criminal history score by one point. But this one-point decrease
would have no effect on Mr. Razo’s criminal history category, which would remain at
IV based on Mr. Razo’s seven criminal history points. 	U.S.S.G. ch. 5, pt. A
(Sentencing Table). The guideline range for a base offense level of 42 and a criminal
history category of IV is 360 months to life imprisonment, which is the same as the
guideline range for a base offense level of 42 and a criminal history category of VI.
Id. In other words, even if the Court were to credit Mr. Razo’s arguments about his
status as a career offender, Mr. Razo’s guideline range would remain unchanged.3
Because Mr. Razo’s guideline range is the same irrespective of his status as a
career offender, the Court is unable to offer him any relief. Under U.S.S.G. § 1B1.10,
Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy
Statement), a court is not authorized to reduce a defendant’s term of incarceration if
the amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). As Amendment 821 does not have the
effect of reducing Mr. Razo’s sentencing guideline range, the Court may not reduce
his sentence pursuant to Amendment 821.
3 	In his December 21, 2023 motion to appoint counsel, Mr. Razo also argues that he is eligible
for a two-point reduction of his base offense level. 	Mot. for Appointment at 1. 	Mr. Razo does not
identify what provision of the Sentencing Guidelines would entitle him to such a reduction, but the
Court observes that the guideline range for a base offense level of 40 and a criminal history category
of IV is still 360 months to life imprisonment. Therefore, even if the Court accepted this argument, it
too would not change Mr. Razo’s guideline range.
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The Court rejects Mr. Razo’s motion for appointment of counsel because the
result the Court has reached on this motion is clearly mandated by law and by the
guidelines and defense counsel could not affect the Court’s ruling.
The 	Court 	DISMISSES 	without 	prejudice 	the 	Defendant’s 	Motion 	for
Reduction of Sentence Pursuant to Amendment 821 and for Appointment of Counsel
(ECF No. 329) and the Defendant’s Motion for Appointment of Counsel (ECF No. 332).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 26th day of December, 2023
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