USA v. Ashby et al

District of Nebraska, ned-8:2004-cr-00316-32156

MEMORANDUM AND ORDER denying {{273}} motion to reduce sentence pursuant to crack cocaine Amendment 706 as to Richard Garza. Ordered by Judge Laurie Smith Camp. (Copy mailed to pro se party)(JAE,) Modified on 4/10/2008 to correct judges' name.

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8:04-cr-00316-LSC-SMB Doc # 275 Filed: 03/07/08 Page 1 of 2 - Page ID # 919 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA UNITED STATES OF AMERICA,) CASE NO. 8:04CR316) Plaintiff,)) vs.) ORDER) RICHARD GARZA,)) Defendant.) This matter is before the Court on the Defendant's motion to reduce his sentence under Amendment 709 (Filing No. 273). The Defendant pleaded guilty to Counts I and VIII of the Indictment. Count VIII sets out a criminal forfeiture offense, and Count I charged Garza with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. Garza was initially sentenced to 168 months, based on a total offense level of 30 and placement in criminal history category VI. (Filing Nos. 168, 169.) However, Garza was resentenced to 151 months based on a motion filed under Federal Rule of Criminal Procedure 35. (Filing No. 238.) Garza's sentence was affirmed on appeal. (Filing No. 269.) Garza requests a reduced sentence based on changes to § 4A1.2(c) brought about through Amendment 709. Garza argues that Amendment 709 should lower his criminal history category from VI to III. Garza argues that 18 U.S.C. § 3582(c)(2) provides authority for the reduction. 18 U.S.C. § 3582(c)(2) provides that a sentence can be lowered if the sentencing range has been lowered by the Sentencing Commission through the process of revising the sentencing guidelines. Accordingly, U.S.S.G. § 1B1.10 governs the process of 8:04-cr-00316-LSC-SMB Doc # 275 Filed: 03/07/08 Page 2 of 2 - Page ID # 920 determining which amendments to the guidelines are retroactive. Because Amendment 709 is not included in the list of retroactive amendments set out in U.S.S.G. § 1B1.10(c), Garza's sentence may not be lowered for the reasons raised in his motion. United States v. Orozco, 2008 WL 505376, at *1 (D. Kan. Feb. 21, 2008); United States v. Cutright, 2008 WL 320515, at *1 (S.D. Ill. Feb. 4, 2008); United States v. Beasley, 2007 WL 4390380, at *1 (S.D. Ill. Dec. 14, 2007). IT IS ORDERED that the Defendant's motion to reduce his sentence under Amendment 709 (Filing No. 273) is denied. DATED this 7th day of March, 2008. BY THE COURT: s/Laurie Smith Camp United States District Judge 2