USA v. Andasola

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Criminal Case No. 17-cr-427-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. JOSE BURCIAGA ANDASOLA,
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SENTENCE REDUCTION
This matter is before the Court on Defendant Jose Burciaga Andasola’s “Motion
for Sentence Reduction Under 18 U.S.C. § 3582(c)(2) and USSG 1B1.10, et al.,
(Pursuant to Amendment 821 – Downward Adjustment for Certain/Eligible Zero-Point
Offenders)[] and Motion for the Appointment of Counsel” (ECF No. 183) (“Motion”). The
Government filed a response. (ECF No. 187.) Defendant did not file a reply.
For the following reasons, the Motion is denied.
I. BACKGROUND
In July 2019, a jury convicted Defendant on two counts: (1) distribution or
possession with intent to distribute 50 grams or more of methamphetamine (actual) or
500 grams or more of a mixture or substance containing a detectable amount of
methamphetamine, as well as the aiding and abetting of same, in violation of 21 U.S.C.
§§ 841 & 2; and (2) distribution or possession with intent to distribute 100 grams or
more of a mixture or substance containing a detectable amount of heroin, and the aiding
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and abetting of same, also in violation of 21 U.S.C. §§ 841 & 2. (ECF No. 122.) In
December 2019, the Court sentenced Defendant to 150 months, as to each Count, to
be served concurrently, and 5 years of supervised release, as to each Count, to be
served concurrently. (ECF No. 137, 141.) In the Amended Presentence Investigation
Report (“PIR”), which was largely adopted by the Court (see ECF No. 142 at 1),
Defendant was not assessed any criminal history points nor any additional “status
points.” (ECF No. 139 at ¶¶ 62–63.)
In October 2023, the Court denied Defendant’s first habeas petition, in which
Defendant sought relief based on asserted ineffective assistance of counsel. (ECF No.
175.) In the present Motion, Defendant asks the Court to “apply Amendment 821” and
“reduce his sentence accordingly” “[i]n light of [his] significant efforts toward
rehabilitation, his spotless conduct record, and his imminent deportation.” (ECF No.
183 at 7.) He also “requests the appointment of counsel to help with properly briefing
the application of Amendment 821 and obtaining the necessary documents and
evidence related to this case.” (Id.)
II. APPLICABLE STANDARDS
Under 18 U.S.C. § 3582(c)(2), a court may modify the sentence
of a defendant who 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. § 944(o), upon motion of the
defendant or the Director of the Bureau of Prisons [“BOP”],
or on its own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
The Sentencing Guidelines, in turn, direct that:
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A reduction in the defendant’s term of imprisonment is not
consistent with this policy statement and therefore is not
authorized under 18 U.S.C. § 3582(c)(2) if—
(A) none of the amendments listed in subsection (d) is
applicable to the defendant; or
(B) an amendment listed in subsection (d) does not have
the effect of lowering the defendant’s applicable guideline
range.
U.S.S.G. § 1B1.10(a)(2) (2024 ed.).
To determine “whether, and to what extent, a reduction in the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) and [U.S.S.G. § 1B1.10] is warranted,”
courts must “determine the amended guideline range that would have been applicable
to the defendant if the amendment(s) to the guidelines . . . had been in effect at the time
the defendant was sentenced.” 	§ 1B1.10(b)(1). 	Absent exception, courts “shall not
reduce the defendant’s term of imprisonment . . . to a term that is less than the minimum
of the amended guideline range . . . .” § 1B1.10(b)(2)(A). This limitation also applies “[i]f
the term of imprisonment imposed was outside the guideline range applicable to the
defendant at the time of sentencing,” such as where the sentence “constitut[ed] a
downward departure or variance.” § 1B1.10, cmt. 3.
III. ANALYSIS
Defendant asks the Court to reduce his sentence in accordance with Amendment
821, which incorporated two pertinent changes to the Sentencing Guidelines relating to
“zero-point offenders” and the assessment of “status points.” 	§ 1B1.10(d), cmt. 7. 	But
the retroactive application of these changes does not result in a lesser sentence for
Defendant. Accordingly, the Court cannot reduce his sentence.
First, the “zero-point offenders” provision instructs that a court should “decrease
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the offense level determined under Chapters Two and Three” of the Sentencing
Guidelines “by 2 levels” if, among ten additional criteria, “the defendant did not receive
any criminal history points from Chapter Four, Part A.” § 4C1.1(a). Defendant correctly
points out that he meets this threshold criteria, as he was assessed a total criminal history
score of zero. (ECF No. 139 at ¶ 62.) But reducing his offense level in accordance with
Amendment 821—from an offense level of 38 at Criminal History Category I to an offense
level of 36 at Criminal History Category I—yields an amended guideline range of 188 to
235 months. 	(ECF No. 142 at 1); see also U.S.S.G. § 5A (2018 ed.). 	This 188-month
minimum is more than the 150-month sentence Defendant is currently serving. (ECF No.
141 at 2.)1 Section 3582(c)(2) thus does not permit the Court to apply a further reduction.
See also U.S.S.G. § 1B1.10, cmt. 3 (2024 ed.).
Second, where the Sentencing Guidelines previously mandated that two additional
“status points” must be added to a defendant’s criminal history score “if the defendant
committed the instant offense while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work release, or escape status,”
U.S.S.G. § 4A1.1(d) (2018 ed.), Amendment 821 made it such that just one status point
is assessed if the defendant (1) receives seven or more criminal history points under
subsections (a) through (d), and (2) committed the instant offense while under any
criminal justice sentence. U.S.S.G. § 4A1.1(e), cmt. 5 (2024 ed.). But here, Defendant
received no status points in the first instance. 	Thus, Amendment 821’s changes to the
assessment of status points have no effect on his criminal history score and, in turn, the
1 The Court already applied a substantial downward variance from the minimum of the
applicable guideline range at the time of sentencing on the defense’s motion.
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guideline range applicable to his offense level.
For these reasons, Defendant’s Motion based on Amendment 821’s changes to
the Sentencing Guidelines is denied. Defendant also has not demonstrated a compelling
need for the appointment of counsel to assist with the Motion and his request for same is
similarly denied at this time. 	United States v. Lynn, 2024 WL 4298766, at *1 (D. Kan.
Sept. 26, 2024) (citing United States v. Olden, 296 F. App’x 671, 674 (10th Cir. 2008)) (“a
federal district court has discretion to appoint counsel to assist a [d]efendant’s pursuit of
a § 3582 motion”).
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Sentence Reduction (ECF No.
183) is DENIED.
Dated this 17th day of March, 2025.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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