United States District Court, D. Colorado
R. BROOKE JACKSON, District Judge.
The defendant moves for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2). For the reasons discussed in this Order, the motion is denied.
The following facts are undisputed:
1. An indictment was filed in this district against Manual Jesus Barela on May 4, 2005. The three counts, based on conduct alleged to have occurred in April 2005, were (Count I) possession of a firearm by a prohibited person, 18 U.S.C. § 922(g)(1); (Count II) possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1); and (Count III) possession with intent to distribute and distribution of five grams or more of cocaine base ("crack"), including aiding and abetting others, 18 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii).
2. Mr. Barela agreed to plead guilty to all three charges. Plea Agreement, November 3, 2005, at 1.
3. The government agreed that a three-level downward adjustment to the advisory sentencing computation under the United States Sentencing Guidelines for acceptance of responsibility would be appropriate. The government also agreed not to file additional narcotics or firearm charges; not to seek additional sentencing enhancement under 18 U.S.C. § 924(c) beyond Count II to which the defendant was pleading; and not to seek a sentencing enhancement pursuant to 21 U.S.C. § 843 for distribution of narcotics within 1000 feet of a school zone. Id. at 1-2.
4. The Plea Agreement then states: "In exchange, the defendant and the government agree that, pursuant to Fed. R. Crim. P. 11.1(c)(1)c (sic), the defendant shall be sentenced to 180 months in the Federal Bureau of Prisons [fn. 1], and that such sentence is reasonably and rationally calculated pursuant to the factors set forth in 18 U.S.C. § 3553. The government's agreement to forego filing any additional charges or sentencing enhancements is based on the defendant's plea of guilty to all charges in the indictment, and his stipulation to a sentence of 180 months, or fifteen (15) years." Id. at 2.
5. Footnote 1, referenced in the "In exchange" paragraph quoted immediately above, states: "The proposed sentence of 180 months reflects a sentence of 121 months from the advisory guideline range of 121-151 months which is contemplated from a base offense level 29 and Criminal History Category IV, and an additional 60 months mandatorily consecutive due to defendant's plea to 18 U.S.C. § 924(c). The parties (sic) stipulated agreement is that the defendant will be sentenced to a term of imprisonment of fifteen years in the Federal Bureau of Prisons." Id. at 2 n.1.
6. The Plea Agreement further provides: "The parties understand that a Presentence Investigation Report will be authored, and that the defendant's sentencing range will be calculated under the advisory United States Sentencing Guidelines. The defendant understands and acknowledges, however, that his decision to plead guilty to the terms of this plea agreement constitutes a stipulation between the parties that the defendant will be sentenced to 180 months in the Federal Bureau of Prisons. The defendant chooses to plead guilty according to the terms and conditions of this Plea Agreement and Statement of Facts to obtain the benefit of the government's agreement to forego all criminal charges." Id. at 2.
7. The statutory prison ranges for the three counts were (Count I) not more than 120 months; (Count II) not less than five years, to be served consecutively to any other term of imprisonment imposed; and (Count III) not less than five years nor more than 40 years imprisonment. Id. at 3.
8. The estimated advisory sentencing computation under the United States Sentencing Guidelines set forth in Mr. Barela's plea agreement was based upon an offense level of 29 (a base level of 30, increased by two levels for possession of a firearm during distribution of "crack" cocaine, decreased by three levels for acceptance of responsibility); a criminal history category of IV (based upon 8 total criminal history points); and a resulting advisory guideline range of 121-151 months. Plea Agreement at 7-8.
9. The Plea Agreement acknowledged that the base offense level and criminal history categories were estimates that were subject to further investigation by the United States Probation Office in the preparation of the presentence investigation report. However: "Regardless of the defendant's base offense level or Criminal History Category, the government and the defendant agree that a reasonable, appropriate and binding sentence is 180 months, or 15 years, based on the government's concession that it will not file additional criminal charges in connection with the events of April 5 to April 9, 2005 as those events pertain to the defendant." Id. at 9.
10. The Presentence Investigation Report [ECF No. 35] calculated the guideline range differently from that contemplated in the Plea Agreement. The Report states that the correct offense level was 27 as compared to the parties' estimated level of 29 because the probation officer did not include a two-level increase for possession of a firearm during distribution of crack cocaine. Id. at 5-6. When coupled with criminal history category IV this resulted in a guideline range of 100-120 months for Count I and 100-125 months for Count III. Id. at 15. No guideline range ...