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United States v. Guerrero

United States Court of Appeals, Seventh Circuit

January 7, 2020

United States of America, Plaintiff-Appellee,
Alex Guerrero, Defendant-Appellant.

          Argued November 5, 2019

          Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:10-cr-00109-TLS-APR-22 - Theresa L. Springmann, Chief Judge.

          Before Flaum, Rovner, and Hamilton, Circuit Judges.


         Since 2015, defendant-appellant Alex Guerrero has sought a reduction of his prison sentence under Amendment 782 to the United States Sentencing Guidelines, which reduced guideline ranges for drug quantities. Despite some procedural complications, we agree with Guerrero that he is entitled to and has not yet received one opportunity for full consideration of the merits of his request. Accordingly, we vacate the decision of the district court and remand so that he may properly present such a motion, the merits of which are for the sound discretion of the district court.

         I. Factual and Procedural Background

         Guerrero was a Chicago police officer who also participated in drug trafficking by the Latin Kings gang in Chicago and northwestern Indiana. In 2013, he pleaded guilty to four counts: (1) conspiring to participate in racketeering activity, in violation of 18 U.S.C. § 1962(d); (2) conspiring to possess with intent to distribute five kilograms or more of cocaine and 1000 kilograms or more of marijuana, in violation of 21 U.S.C. § 846; (3) interfering with commerce by threats or violence, in violation of 18 U.S.C. § 1951; and (4) using and carrying a firearm during and in relation to crimes of violence and drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A). Even with a criminal history category of I, Guerrero's original sentencing guideline range for the first three counts was life in prison, based on a total offense level of 43. The guideline recommendation for the fourth count was 60 months to be served consecutively to the sentence for the other counts, as required by statute.

         Guerrero did not receive life plus 60 months, though. He provided substantial assistance to the government in prosecuting a number of his Latin Kings co-conspirators. As a result, Guerrero and the government came to a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), under which the parties would recommend that he serve a total of 228 months in prison: 168 months (rather than life) on the first three counts, plus 60 months on the fourth. The district court (Judge Lozano) was not bound by the recommendation, but he accepted it and sentenced accordingly.

         The court's explanation of the sentence played a role in some of the later confusion. The court did not say it was simply imposing a below-guideline sentence under 18 U.S.C. § 3553(a) and (e). Nor did the court say that it was just granting a downward departure under U.S.S.G. § 5K1.1 for substantial assistance. Instead, the court said it was imposing a downward departure of six offense levels pursuant to the government's motion for a downward departure under § 5K1.1, plus a further reduction of another two levels for unspecified "other factors." In conjunction with Guerrero's other reductions and enhancements, the eight-level departure pointed to a hypothetical guideline range of 168 to 210 months on the first three counts.

         Amendment 782 to the United States Sentencing Guidelines, which became effective on November 1, 2014, reduced by two levels the offense levels for most drug-trafficking crimes. The Sentencing Commission made Amendment 782 retroactive under U.S.S.G. § 1B1.10. Guerrero sought to benefit from this amendment. On July 20, 2015, he sent a letter to the district court requesting that he be appointed counsel in order to file a fully developed motion for resentencing under the amendment. The district court rejected Guerrero's request on August 13, 2015, saying that our decision in United States v. Foster required this result. 706 F.3d 887, 888 (7th Cir. 2013) ("[P]risoners who seek lower sentences following retroactive changes to the Guidelines do not receive counsel at public expense."). This was not a correct reading. Foster holds that district courts are not required to appoint counsel under these circumstances, but it does not prohibit them from doing so.

         In what no doubt seemed at the time like a helpful step, the court set the stage for this appeal by proceeding on its own initiative to consider Guerrero's eligibility for a sentence reduction under Amendment 782, citing 18 U.S.C. § 3582(c)(2). In its order of October 27, 2015, the district court denied relief under Amendment 782. Judge Lozano found that Guerrero was eligible for a two-level reduction under Amendment 782 but that the two-level reduction would make no difference to his ultimate prison sentence:

As a result of Amendment 782, Guerrero's total offense level for Counts 1, 2 and 14 is reduced to 41, for a guideline range on these counts of 324-405 months. Under Amendment 782, the Court may deduct the six (6) levels previously reduced due to the Government's motion for a reduction, but cannot also deduct the two levels received previously for other factors. See U.S.S.G. section 1B1.10(b)(2) (explaining that generally, the Court cannot reduce a sentence below the minimum of the amended guideline range, but allowing for an exception where the original sentence was below the guideline range due to substantial assistance). If the six (6) levels were deducted, his sentencing range would be 168-210 for Counts 1, 2 and 14-the same range in which he was originally sentenced. As a result, in the specific circumstances of this case, Guerrero cannot benefit from Amendment 782.

         In other words, the two levels credited at Guerrero's 2013 sentencing for "other factors"-which, in our reading of the record, appear to be just part of the total downward departure he received primarily for substantial assistance under his plea agreement-were held essentially to cancel out the reduction under Amendment 782. In March 2016, Guerrero filed a motion for clarification. The court construed that as a late motion to reconsider and denied it. Guerrero sought to appeal this denial to our court, but that appeal was dismissed after he failed to secure leave to file in forma pauperis.

         In 2018, Guerrero tried again, leading to this appeal. With the aid of counsel this time, he sought a sentence reduction under Amendment 782 pursuant to 18 U.S.C. § 3582(c)(2), this time adding reliance on the Supreme Court's decision in Hughes v. United States,138 S.Ct. 1765 (2018). In Hughes, the Court held that relief under ยง 3582(c)(2) should be available to defendants with binding plea agreements under Federal Rule of Criminal Procedure 11(c)(1)(C), "to permit the district court to reconsider a prior sentence to the extent the prisoner's Guidelines range was a relevant part of the framework the judge used to accept the ...

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