United States of America v. Alzuarte-Rodriguez et al

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Case 5:18-cr-00047-SLP Document1690_ Filed 03/21/25 Pagelof8

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )
Plaintiff,
Vv. Case No. CR-18-47-SLP
JESUS MANUEL-LOPEZ,
Defendant.
ORDER

Before the Court is Defendant’s pro se Motion for Sentence Reduction [Doc. No.
1638]. Defendant seeks a reduction of his sentence pursuant to 18 U.S.C.
§§ 3581(c)(1)(A) and 3582(c)(2).!_ The Government has filed a Response [Doc. No.
1638] in opposition. For the reasons that follow, Defendant’s Motion is DISMISSED in
part and DENIED in part.
I. Background

On March 8, 2019, Defendant pleaded guilty to one count of conspiracy to possess
with intent to distribute and distribute methamphetamine. See [Doc. Nos. 768, 823-826].
On June 24, 2019, the United States Probation Office filed its Final Presentence

Investigation Report (PSR) [Doc. No. 1046].

' Defendant also asks the Court to appoint counsel. See [Doc. No. 1638] at 6. But he has “no
constitutional right to counsel to aid in a [his] request for compassionate release.” United States
v. Hemmelgarn, 15 F.4th 1027, 1032 (10th Cir. 2021). Nevertheless, the Court has discretion to
appoint counsel upon consideration of several factors, “including the merits of the litigant’s
claims, the nature of the factual issues raised in the claims, the litigant’s ability to present his
claims, and the complexity of the legal issues raised by the claims.” See Williams v. Meese, 926
F.2d 994, 996 (10th Cir. 1991). Under the circumstances of this case, none of these factors
weigh in favor of the appointment of counsel. Defendant’s request is therefore DENIED.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
The PSR calculated a base offense level of 36, plus (1) a two-level increase
because firearms were possessed in connection with the drugs; (2) a two-level increase
because the methamphetamine was imported, and a mitigating role adjustment was not
warranted; (3) a two-level increase because Defendant maintained a premises for the
purpose of storing and distributing the drugs; and (4) a three-level enhancement for
defendant’s role as a manager or supervisor. [Doc. No. 1046] ¶¶ 35–40. After applying a
three-level reduction for acceptance of responsibility to the adjusted offense level, the
PSR calculated a total offense level of 42. Id. ¶¶ 42–46.
The PSR calculated a total criminal history score of zero for Defendant, placing
him in a criminal history category of I. 	Id. ¶¶ 49–50. 	Combining Defendant’s total
offense level of 42 and criminal history category of I, the PSR calculated a guideline
imprisonment range of 360 months to life. Id. ¶ 90.
On 	August 	12, 	2019, 	the 	Court 	sustained 	the 	objection 	to 	the 	firearm
enhancement, but otherwise adopted the PSR without change.2 	[Doc. No. 1154]. 	The
Court sentenced Defendant to 204 months’ imprisonment. [Doc. No. 1153].
On July 8, 2024, Defendant filed the pending Motion. 	He seeks a reduction
pursuant to 18 U.S.C. § 3582(c)(2) based on Amendments 814, 817, and 821 to the
United States Sentencing Guidelines (U.S.S.G.). He also seeks a reduction pursuant to 18
U.S.C. § 3582(c)(1)(A).
2 After the Court sustained the objection, Defendant’s total offense level was 40, and his
guideline range of imprisonment was 292 to 365 months’ imprisonment. Doc. No. 1154 ¶ III.
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II. 	Standard
“A district court does not have inherent authority to modify a previously imposed
sentence; it may do so only pursuant to statutory authorization.” United States v.
Mendoza, 118 F.3d 707, 709 (10th Cir. 1997). 	Defendant’s Motion implicates two
sources of statutory authorization.
First, the Court may reduce the sentence of a defendant “sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.” 	18 U.S.C. § 3582(c)(2). 	Section 3582(c)(2) “establishes a
two-step inquiry.” 	Dillon v. United States, 560 U.S. 817, 826 (2010). 	“At step one,
§ 3582(c)(2) requires the court to follow the Commission’s instructions in [U.S.S.G.]
§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.
Second, a defendant may seek a compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A). 	District courts apply 	a three-step 	framework 	to § 	3582(c)(1)(A)
motions. 	United States v. McGee, 992 F.3d 1035, 1042 (10th Cir. 2021) (citing United
States v. Jones, 980 F.3d 1098, 1107 (6th Cir. 2020)). 	A reduction is proper under that
test if:
(1) 	the 	district 	court 	finds 	that 	extraordinary 	and 	compelling 	reasons
warrant such a reduction; (2) the district court finds that such a reduction is
consistent with applicable policy statements issued by the Sentencing
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Commission; and (3) the district court considers the factors set forth in
§ 3553(a), to the extent that they are applicable.
Id. If any of these three requirements are lacking, the Court may deny the motion without
addressing the other steps. United States v. Hald, 8 F.4th 932, 942 (10th Cir. 2021). But
to grant relief, the Court must be satisfied that all three requirements are met. Id.
III. 	Analysis
a. 	Section 3582(c)(2)
Defendant seeks a sentence reduction pursuant to Amendment 821 to the U.S.S.G.
which took effect on November 1, 2023, and applies retroactively. Part A of Amendment
821 limits the criminal history impact of “status points,” and Subpart 1 of Part B of
Amendment 821 creates a new guideline, § 4C1.1, that provides for a decrease of two
offense levels for “Zero-Point Offenders.” 	See U.S. Sent’g Guidelines Manual app. C
Supp., amend. 821 (U.S. Sent’g Comm’n 2023). 	With respect to the guideline for zero-
point offenders, a defendant is eligible for a two-level reduction in his offense level if he
or she meets all ten of the listed criteria.3
3 Those ten criteria are:
(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;
(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);
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Defendant did not receive any status points for committing the offense while under
a criminal justice sentence. And although Defendant has zero criminal history points, he
is not eligible as a zero-point offender because he fails to meet all ten eligibility criteria.
Specifically, Defendant fails to meet U.S.S.G. §4C1.1(a)(10) because he received a two-
point enhancement under U.S.S.G. §3B1.1(b) for his role in the offense. 	See [Doc. No.
1046] ¶ 40. A sentence reduction, therefore, is not authorized under Amendment 821.
Defendant also cites Amendment 817, which expands the applicability of the
safety valve provision. 	But this amendment has not been made retroactive, so it cannot
serve as the basis for a sentence reduction under § 3582(c)(2).4 	See United States v.
Creel, No. 19-05049-01-CR-SW-MDH, 2024 WL 2732269, at *1 (W.D. Mo. May 28,
2024) (citing U.S.S.G. §1B1.10(d)). 	Accordingly, Amendment 817 is inapplicable to
Defendant’s case. 	Because the Court lacks jurisdiction to reduce Defendant’s sentence
pursuant to § 3582(c)(2), this part of his Motion is DISMISSED. 	See United States v.
White, 765 F.3d 1240, 1242 (10th Cir. 2014) (“[D]ismissal for lack of jurisdiction rather
than denial on the merits is the appropriate disposition of [defendant’s] § 3582(c)(2)
motion.”).
(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 . . . .
U.S.S.G. §4C1.1(a).
4 Nor can a nonretroactive change to the guidelines be considered as an extraordinary and
compelling circumstance under § 3582(c)(1)(A). See U.S.S.G. §1B1.13(c).
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b. 	Section 3582(c)(1)(A)5
Defendant also cites Amendment 814, which “expand[ed] the list of specified
extraordinary and compelling reasons that can warrant sentence reductions; retain[ed] the
existing 	‘other 	reasons’ 	catchall; 	provide[d] 	specific 	guidance 	with 	regard 	to 	the
permissible consideration of changes in the law; and respond[ed] to case law that
developed after the enactment of the First Step Act.”6 U.S.S.G. Suppl. to App. C, at 205.
Specifically, as set forth in the Government’s Response, the Amendment: “(1) adds
‘Medical 	Circumstances’ 	subcategories; 	(2) 	modifies 	the 	‘Family 	Circumstances’
category; (3) adds a ‘Victim of Abuse’ category; (4) revises the ‘Other Reasons’
category; and (5) adds an ‘Unusually Long Sentences’ category, permitting consideration
of non-retroactive changes in law in a narrow set of circumstances.” 	[Doc. No. 1645] at
5 (quoting United States Sentencing Commission, 2023 AMENDMENTS IN BRIEF,
Amendment 	#814 	Reduction 	in 	Sentence 	Pursuant 	to 	Section 	3582(c)(1)(A),
https://www.ussc.gov/sites/default/files/pdf/amendment-process/amendments-in-
brief/AIB_814.pdf).
5 Defendant’s Motion also makes a passing reference to the fact that a “government witness
guess’s [sic] at amount and quality [] cause[d] the guideline calculations to be misleading.”
[Doc. No. 1638] at 6. Defendant elaborates that he “was not aware that the governments witness
could come up with whatever amount he felt would make the government give him a bigger time
reduction,” but that his lawyer told him “thats [sic] how it works.” 	Id. 	The Government
contends that this portion of the Motion attacks the validity of Defendant’s sentence. The Court
agrees. 	Cf. United States v. Faure, 660 F. App'x 596, 597 (10th Cir. 2016). 	Defendant cannot
use a compassionate release motion to collaterally attack his conviction and sentence. 	See
United States v. Wesley, 60 F.4th 1277, 1288 (10th Cir. 2023), reh’g en banc denied, 78 F.4th
1221 (10th Cir. 2023), cert. denied, 2024 WL 2883879 (June 10, 2024).
6 The amendment also revised U.S.S.G. §1B1.13 by “extend[ing] the applicability of the policy
statement to defendant-filed motions.” U.S.S.G. Suppl. to App. C, at 205.
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Defendant does not identify any facts supporting compassionate release under
these expanded categories, however. Nor has he served ten years of his sentence, so he is
not eligible under the unusually long sentences category. 	See U.S.S.G. §1B1.13(b)(6).
Defendant’s Motion also references a change to “the statute’s [sic] [he] was indicted for”
which would “result[] in a lower guideline range.” [Doc. No. 1638] at 6–7. But he does
not specify any substantive change supporting this statement and, like the Government,
the Court is aware of none. See [Doc. No. 1645] at 6.
The remaining reasons identified by Defendant do not warrant relief because they
are not extraordinary and compelling. 	He argues that (1) his “security risk level is low
risk” and he has “a low recidivism level,” (2) he has “enrolled in numerous first step act
programs,” and (3) he will return to his family and “turn a new leaf” in a construction job
upon his release. 	[Doc. No. 1638] at 7. 	In essence, Defendant argues that he has been
successful in his incarceration and that he has a loving family who misses him. 	The
Court has no reason to doubt Defendant’s achievements or the sincerity of his statements.
Nevertheless, these reasons are not extraordinary and compelling, and are therefore not
sufficient to warrant a sentence reduction under § 3582(c)(1)(A). 	This portion of
Defendant’s Motion is DENIED.
IT IS THEREFORE ORDERED that Defendant’s pro se Motion for Reduction of
Sentence [Doc. No. 1685] is DISMISSED in part and DENIED in part, as set forth
herein.
IT IS SO ORDERED this 21 st day of March, 2025.
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Case 5:18-cr-00047-SLP
Document 1690
Filed 03/21/25 Page 8 of 8
Ant Z Pulk
SCOTT L. PALK UNITED STATES DISTRICT JUDGE
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