Order Re: Motion to Modify Sentence — United States v. Cynthia Ann Hernandez

Summary

Order Re: Motion to Modify Sentence (ECF No. 50), filed 05/20/24 as Document 57 in Case 5:22-cr-00217-MCS-1 against Cynthia Ann Hernandez. She pleaded guilty to mail fraud and access device fraud in excess of $1,000 over fraudulent applications for unemployment insurance benefits, and was sentenced to 30 months' imprisonment. She asks for a reduction under the guideline for zero-point offenders, effective November 1, 2023. The court finds her ineligible because she received an adjustment under section 3B1.1, denies the motion, and directs the Clerk to terminate all open motions.

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     Case 5:22-cr-00217-MCS Document 57 Filed 05/20/24 Page 1 of 4 Page ID #:326



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8                           UNITED STATES DISTRICT COURT
9                          CENTRAL DISTRICT OF CALIFORNIA
10      UNITED STATES OF AMERICA,             Case No. 5:22-cr-00217-MCS-1
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                         Plaintiff,           ORDER RE: MOTION TO MODIFY
12                                            SENTENCE (ECF NO. 50)
13                 v.
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        CYNTHIA ANN HERNANDEZ,
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                         Defendant.
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     Case 5:22-cr-00217-MCS Document 57 Filed 05/20/24 Page 2 of 4 Page ID #:327



1            Defendant Cynthia Ann Hernandez and co-schemers filed fraudulent applications
2      for unemployment insurance benefits. (Plea Agreement § 13, ECF No. 24.) She pleaded
3      guilty to mail fraud and access device fraud in excess of $1,000. (Mins., ECF No. 27.)
4      The Court sentenced her to 30 months’ imprisonment. (J. & Commitment Order, ECF
5      No. 40.) Defendant moves for a modification of her sentence pursuant to 28 U.S.C.
6      § 3582(c)(2). (Mot., ECF No. 50.) The Government opposes Defendant’s motion.
7      (Opp’n, ECF No. 51.) Defendant did not timely file a reply.
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9      I.    LEGAL STANDARD
10           “Federal courts are forbidden, as a general matter, to modify a term of
11     imprisonment once it has been imposed, but the rule of finality is subject to a few narrow
12     exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011) (internal quotation
13     marks and citation omitted). One such narrow exception is compassionate release
14     pursuant to 18 U.S.C. § 3582.
15           A court may reduce a term of imprisonment for a defendant sentenced based on
16     a sentence range subsequently lowered by the Sentencing Commission “after
17     considering the factors set forth in section 3553(a) to the extent that they are applicable,
18     if such a reduction is consistent with applicable policy statements issued by the
19     Sentencing Commission.” 18 U.S.C. § 3582(c)(2). This prescribes “a two-step inquiry.”
20     Dillon v. United States, 560 U.S. 817, 826 (2010). First, a court must determine whether
21     the defendant is eligible for a sentence modification following the policy statements in
22     United States Sentencing Guidelines (“U.S.S.G.”) § 1B1.10. Second, a court must
23     determine whether exercise of discretion is appropriate given the § 3553(a) factors. Id.
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26     II.   DISCUSSION
27           Defendant asks the Court to reduce her sentence given U.S.S.G. § 4C1.1, which
28     became effective November 1, 2023. (Mot. 2.) The new guideline provides a two-point
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     Case 5:22-cr-00217-MCS Document 57 Filed 05/20/24 Page 3 of 4 Page ID #:328



1      adjustment of the total offense level for “zero-point offenders.” The adjustment is
2      available for defendants who meet all of the following criteria:
3                   (1) the defendant did not receive any criminal history points
4                   from Chapter Four, Part A;
5                   (2) the defendant did not receive an adjustment under § 3A1.4
6                   (Terrorism);
7                   (3) the defendant did not use violence or credible threats of
8                   violence in connection with the offense;
9                   (4) the offense did not result in death or serious bodily injury;
10                  (5) the instant offense of conviction is not a sex offense;
11                  (6) the defendant did not personally cause substantial
12                  financial hardship;
13                  (7) the defendant did not possess, receive, purchase,
14                  transport, transfer, sell, or otherwise dispose of a firearm or
15                  other dangerous weapon (or induce another participant to do
16                  so) in connection with the offense;
17                  (8) the instant offense of conviction is not covered by § 2H1.1
18                  (Offenses Involving Individual Rights);
19                  (9) the defendant did not receive an adjustment under § 3A1.1
20                  (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5
21                  (Serious Human Rights Offense); and
22                  (10) the defendant did not receive an adjustment under
23                  § 3B1.1 (Aggravating Role) and was not engaged in a
24                  continuing criminal enterprise, as defined in 21 U.S.C.
25                  § 848 . . . .
26     U.S.S.G. § 4C1.1(a).
27           The Court cannot grant Defendant relief because a reduction is only authorized
28     if an amendment to the guidelines applies to the defendant. U.S.S.G. § 1B1.10(a)(2).
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     Case 5:22-cr-00217-MCS Document 57 Filed 05/20/24 Page 4 of 4 Page ID #:329



1      The new guideline does not apply to Defendant because she received an adjustment
2      under § 3B1.1. In its presentence investigation report, the United States Probation
3      Office’s calculation of Defendant’s total offense level included a two-point adjustment
4      based on Defendant’s aggravating role in the offense. (Rev. Presentence Investigation
5      Report ¶¶ 58–61, ECF No. 36.) In her sentencing position papers, Defendant did not
6      contest that an aggravating role adjustment was appropriate. (See Def.’s Sentencing
7      Position 4, 7, ECF No. 35.) At sentencing, the Court applied the unchallenged
8      adjustment. Because Defendant received an adjustment under § 3B1.1, she does not
9      meet criterion 10 of § 4C1.1(a).
10            Because the Court finds Defendant ineligible for a sentence modification, the
11     Court declines to reach the § 3553(a) sentencing factors in the second step of the
12     § 3582(c)(2) inquiry. Dillon, 560 U.S. at 826–27. However, the Court applauds
13     Defendant for participating in classes available to her while in custody. (Mot. 3.) The
14     motion for a modification of the sentence is denied.
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16     III.   CONCLUSION
17            The motion is denied. The Court directs the Clerk to terminate all open motions
18     in the docket.
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20     IT IS SO ORDERED.
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22      Dated: May 20, 2024
23                                                    MARK C. SCARSI
                                                      UNITED STATES DISTRICT JUDGE
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