UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 11-238-01 (CKK) GILBERTO LERMA-PLATA,

Defendant.

MEMORANDUM OPINION (July 29, 2019)

Presently before the Court is Defendant Gilberto Lerma-Plata’s [83] Motion for Sentencing

Reduction Pursuant to

(c) (“Def.’s Motion”) (docketed as “Retroactivity Prep

Documents”), which the Government opposes in its [91] Opposition to Defendant’s Motion

Regarding Re-Sentencing (“Govt’s Opposition”). Defendant Gilberto Lerma-Plata (“Defendant”

or “Mr. Lerma-Plata”) filed a [93] Reply to the Government’s Opposition (“Def.’s Reply”), and

the motion is ripe for consideration by this Court. Defendant requests that the Court modify or

reduce his sentence based on § 3582(c) and Amendments 782 and 788 to the United States

Sentencing Guidelines (“U.S.S.G.”), which retroactively reduced by two levels the offense levels

assigned to certain drug offenses. Upon consideration of the pleadings, the relevant legal

authorities, and the record as a whole, the Court has determined that it shall DENY Defendant’s

[83] Motion for Sentencing Reduction Pursuant to

(c) for the reasons described

herein.

I. BACKGROUND

Mr. Lerma-Plata was charged by indictment with one count of conspiracy to distribute 5

kilograms or more of cocaine and with one count of conspiracy to distribute 1,000 kilograms or

1 more of marijuana for importation into the United States, in violation of

, 960,

963 and

(Aiding and Abetting). Indictment, ECF No. [3]. On March 1, 2013,

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Mr. Lerma-Plata pled guilty to one

count of conspiracy to distribute 1,000 kilograms or more of marijuana knowing or intending that

the marijuana would be imported into the United States unlawfully, in violation of

, 960, and 963 and

. See Plea Agmt., ECF No. [45]. Pursuant to the terms of the

plea agreement, the parties agreed that the appropriate sentence of imprisonment should be 151

months. After conducting a plea hearing, the Court accepted the plea agreement, and, on October

24, 2013, this Court sentenced Mr. Lerma-Plata to a term of 151 months imprisonment with credit

for time served. Judgment, ECF No. [75]. Mr. Lerma-Plata did not appeal his sentence and

conviction and currently is serving the term of imprisonment.

In 2014, the United States Sentencing Commission issued Amendment 782, which

retroactively reduced the offense level for certain drug trafficking offenses. See U.S.S.G. app. C,

amend. 782 (2014). In light of Amendment 782, Mr. Lerma-Plata filed this Motion for Sentencing

Reduction Pursuant to

(c) which is presently before the Court. The instant motion

was referred to the United States Probation Office for the District of Columbia (the “Probation

Office”) for a recalculation of Mr. Lerma-Plata’s offense level and criminal history category based

on Amendment 782. The Probation Office filed a Memorandum providing the Court with revised

guideline calculations. See Prob. Mem., ECF No. [85]. Specifically, the Probation Office explained

that Mr. Lerma-Plata was treated as an offender with a total offense level of 34 and a criminal

history category of I at the time of his original sentencing.

The imprisonment range under the

guidelines was 151 to 188 months.

Applying the two-level reduction based on Amendment

782, the Probation Office found that Mr. Lerma-Plata could now be treated as an offender with a

2 total offense level of 32 and a criminal history category of I.

The imprisonment range under

the revised guidelines is 121 to 151 months, which is a difference of 30 to 37 months from the

original calculations.

As such, this Court needs to determine (1) whether or not Mr. Lerma-

Plata is eligible for a sentencing reduction, and (2) whether or not the Court should exercise its

discretion to reduce Lerma-Plata’s 151-month term of imprisonment under his original sentence

to a term of not less than 121 months based on the revised guidelines.

II. DISCUSSION

Generally, a federal court “may not modify a term of imprisonment once it has been

imposed.”

(c); see also Dillon v. United States,

,

,

(2010). However, section 3582(c) of Title 18 of the United States Code

provides three exceptions to this general rule. Specifically, the Court is authorized to modify a

term of imprisonment once imposed only under one of these circumstances: (1) upon motion by

the Director of the Bureau of Prisons; (2) when expressly permitted by statute or Federal Rule of

Criminal Procedure 35; or (3) where the applicable sentencing guideline range has been

retroactively lowered by the Sentencing Commission.

(c)(1)-(2). Only the third

scenario is at issue in this case,

(c)(1)-(2).

In determining whether a sentence reduction is warranted under

, this

Court analyzes a defendant’s motion under a two-step inquiry, as set forth in Dillon v. United

States,

(2010). The Court must determine (1) if Mr. Lerma-Plata is eligible for a

sentence reduction under § 3582(c)(2), and if so (2) whether or not a reduction is warranted in

consideration of the factors set out in

(a). Dillon,

.

Pursuant to

(c), courts may reduce a term of imprisonment:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been

3 lowered by the Sentencing Commission … 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.

(c)(2). The relevant policy statement is section 1B1.10 of the sentencing

guidelines, which provides that “the court shall not reduce the defendant’s term of imprisonment

under

(c)(2) and this policy statement to a term that is less than the minimum of

the amended guideline range ….” U.S.S.G. § 1B1.10(b)(2)(A). Even if a sentence was a result of

a Rule 11(c)(1)(C) plea agreement, a defendant may be eligible for a sentence reduction if the

sentence was based on a Guideline range. United States v. Epps,

(D.C. Cir.

2017).

Pursuant to § 3582(c)(2), the first step is determining if Mr. Lerma-Plata’s sentence is

based on a sentencing range that was subsequently lowered by the Sentencing Commission. A

Rule 11(c) agreement is based on a guideline range “so long as that range was part of the

framework the district court relied on in imposing the sentence or accepting the agreement.”

Hughes v. United States,

(2018). At Mr. Lerma-Plata’s sentencing hearing

and in accepting the plea agreement, this Court referenced the sentencing guidelines. At the

sentencing hearing, the Court determined that Mr. Lerma-Plata’s base offense level was 32. Gov’t.

Ex. 1 at p. 87 ¶¶ 8-10 (Sentencing Transcript). The Court added a two-level increase because Mr.

Lerma-Plata possessed a dangerous weapon in connection with the conspiracy, as well as a two-

level increase for abuse of a position of trust because Mr. Lerma-Plata’s position as a police

commander facilitated his role in the conspiracy. However, the Court decreased Mr. Lerma-Plata’s

offense level by two levels because he accepted responsibility for his offense. Mr. Lerma-Plata

had a Category I criminal history, resulting in a total offense level of 34. At the time the Guideline

4 range was 151-188 months. As such, Mr. Lerma-Plata’s sentence was based on the Guideline

range.

The sentence must also have been one in which the Guideline range has subsequently been

lowered. As indicated by the Probation Office’s Memorandum, Mr. Lerma-Plata’s original offense

level was 34, which resulted in a sentencing range of 151 to 188 months. See Prob. Mem., ECF

No. [85]. As a result of Amendment 782, Mr. Lerma-Plata’s offense level is now 32, and the

sentencing range is 121 to 151 months.

As such, Mr. Lerma-Plata is eligible for a sentencing

reduction because his original sentence was based on a Guideline range that has subsequently been

reduced.

However, despite Mr. Lerma-Plata’s eligibility, a sentencing reduction is unwarranted in

consideration of the § 3553(a) factors. Once the Court has determined that a defendant is eligible

for a sentencing reduction, the Court has the discretion to implement the requested sentence

reduction but is not required to do so. See Freeman v. United States,

,

,

(2011); In re Sealed Case,

(D.C. Cir. 2013). Pursuant to

§ 3553(a), the Court must consider, among other things, “the nature and circumstances of the

offense and the history and characteristics of the defendant,” “the need for the sentence imposed,”

“the kinds of sentences available,” “the kinds of sentence and the sentencing range established”

by the guidelines, “any pertinent policy statement” and “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct.”

(a)(1)-(7). Pursuant to § 1B1.10, the Court may also consider the defendant’s

post-conviction conduct.

The first § 3553(a) factor, the “nature and circumstances of the offense, and the history and

characteristics of the defendant,” weighs strongly in favor of denying Mr. Lerma-Plata’s request

5 for a sentencing reduction. Mr. Lerma-Plata was a police commander in Mexico who was on the

payroll of the Gulf Cartel, a violent organization which is known for trafficking cocaine and

marijuana from Mexico into Texas. Gov’t. Ex. 1, 42 ¶¶ 5-10; 43 ¶¶ 13-23; 37 ¶¶ 15-21 (Sentencing

Transcript). Mr. Lerma-Plata used his role in law enforcement to alert the cartel about law

enforcement activities, and he ignored the cartel’s operation, therefore allowing the cartel to

flourish. Id. at 40 ¶¶ 2-18. He also was involved in protecting plaza bosses, regional cartel leaders,

and at least intended to provide the cartel with various types of dangerous weapons, including AR-

15 rifles and AK-47 rifles. Id. at 40 ¶¶ 2-5; Gov’t. Ex. 2, ¶¶ 15-16 (Wiretap Transcript). Mr.

Lerma-Plata urges the Court to distinguish his case from those in United States v. Galaviz,

(D.D.C. 2013), and United States v. Cook,

(D.D.C. 2017), because

he was “one of several lower level participants who suppled primarily information to a large drug

conspiracy.” Def.’s Reply ¶ 4. However, while Mr. Lerma-Plata may not have been a high-ranking

leader in the Gulf Cartel, as a police commander, he held a position of authority and trust which

he abused by being intrinsically involved in a violent drug cartel. Further, Mr. Lerma-Plata was

involved in discussions with high-ranking cartel leaders and was introduced to a plaza boss by

another leader as being “one of us” and was even given a Christmas bonus for his services. Gov’t.

Ex. 1, 47 ¶¶ 11-20; 29 ¶¶ 13-16, 20-22. As such, the nature and circumstances of Mr. Lerma-

Plata’s offense, as well as his history and characteristics, strongly support denying a sentencing

reduction.

The second § 3553(a) factor, “the need for the sentence imposed” also weighs in favor of

denying a sentencing reduction. During the plea, Mr. Lerma-Plata and the Government agreed that

151 months was an appropriate sentence to reflect the seriousness of the offense. See Plea Agmt.,

ECF No. [45]. At sentencing, the Court agreed and accepted the 151-month sentence. Judgment,

6 ECF No. [75]. Mr. Lerma-Plata’s drug offenses alone are serious, but when added to the fact that

he abused a position of trust, they are even more serious. Drugs are destructive to the community,

families, and individuals, particularly when one is using a position of authority to enable their

trafficking. As such, the second factor does not support reducing Mr. Lerma-Plata’s sentence.

Denying a reduction of Mr. Lerma-Plata’s sentence would not lead to disparities among

similarly situated defendants. At the time of his sentencing, Mr. Lerma-Plata’s 151-month sentence

fell within the appropriate Guideline range, 151 to 188 months, but now the appropriate range is

121 to 151 months. See Prob. Mem., ECF No. [85]. Mr. Lerma-Plata’s 151-month sentence still

falls within the Guideline range for his offense level and criminal history. Because Mr. Lerma-

Plata’s current sentence is still within the Guideline range, his sentence would not create any

disparities. Accordingly, this consideration supports denying the sentencing reduction.

Pursuant to § 1B1.10, the Court is permitted to consider the defendant’s post-conviction

conduct in determining whether or not to reduce his sentence. The Court commends Mr. Lerma-

Plata for his behavior throughout his imprisonment. He has a clean conduct record, is currently

employed as a prison orderly, and has taken over 40 courses since 2014. Def.’s Motion ¶¶ 8, 11;

Def.’s Reply ¶ 3. The Court encourages Mr. Lerma-Plata to continue his exemplary behavior.

However, while Mr. Lerma-Plata has shown a commitment to changing his life, the nature and

circumstances of his offense alone are severe enough to outweigh his post-sentencing conduct.

Accordingly, in an exercise of its discretion, after weighing the § 3553(a) factors, this Court shall

deny Mr. Lerma-Plata’s [83] Motion for Sentencing Reduction Pursuant to

(c).

III. CONCLUSION

Upon review of the record in this case and for the reasons described above, in an exercise

of its discretion, the Court declines to reduce Mr. Lerma-Plata’s original sentence of 151 months

7 of imprisonment. Accordingly, the Court shall DENY Lerma-Plata’s [83] Motion for Sentencing

Reduction Pursuant to

(c) and Amendments 782 and 783 to the United States

Sentencing Guidelines.

An appropriate Order accompanies this Memorandum Opinion.

/s/________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

8