Opinion and Order — United States v. Jaime Duarte-Ochoa (District of Oregon, Document 47, filed July 22, 2014)

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An opinion and order filed July 22, 2014 as Document 47 in United States v. Jaime Duarte-Ochoa, Case No. 6:09-cr-60058-MC, in the U.S. District Court for the District of Oregon. The order states that the defendant challenges the conviction on the grounds that the government failed to adhere to a base offense level stipulation in the plea agreement and that Congress violated the Tenth Amendment in passing the Controlled Substances Act, and also moves for a sentence reduction under 18 U.S.C. § 3582(c)(2). The court denies the first two motions because the plea agreement waived those challenges. It denies the third because the "All Drugs Minus Two Act" is a proposed amendment to the Sentencing Guidelines that has not been enacted. The signature block names Michael McShane, United States District Judge.

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                Case 6:09-cr-60058-MC      Document 47       Filed 07/22/14     Page 1 of 5




                                 IN THE UNITED STATES DISTRICT COURT

                                     FOR THE DISTRICT OF OREGON

    lJNITED STATES OF AMERICA,

                    Plaintiff,                                   Case. No. 6:09-cr-60058-MC

           v.                                                    OPINION AND ORDER

    JAIME DUARTE-OCHOA,

                    Defendant.


    MCSHANE, Judge:

           Defendant Jaime Duarte-Ochoa challenges his conviction on two grounds: that the

    government failed to adhere to the base offense level stipulation in his plea agreement; and that

    Congress violated the Tenth Amendment in passing the Controlled Substances Act (CSA).

    Defendant also moves for a reduction in his sentence pursuant to a proposed amendment to the

    Sentencing Guidelines.




1
           Case 6:09-cr-60058-MC               Document 47           Filed 07/22/14         Page 2 of 5




                                                                                                               1
        On October 13, 2009, defendant pled guilty to a superseding information (ECF No. 20)

in which he was charged with possessing with intent to distribute methamphetamine in violation

of21 U.S.C. §§ 841(a)(l) and (b)(1)(C). On December 15, 2009, U.S. District Court Judge

Michael R. Hogan sentenced defendant pursuant to the plea agreement to 180 months. The

judgment (ECF 27) was filed on December 16,2009, and an amended judgment was filed on

October 31, 2011 (ECF 29).

        Defendant brings three post-conviction motions: a motion to dismiss the superseding

information; a motion pursuant to Fed. R. Civ. P. 60(b)(6i requesting relief from the judgment;

and a motion to reduce in his sentence pursuant to 18 U.S.C. § 3582(c)(2).

        Because defendant waived his ability to raise a motion to dismiss the superseding
                                 •
information or request relief in his plea agreement, defendant's first two motions are DENIED.

Because defendant's motion requesting a sentence reduction stems from a proposed amendment

and not an enacted change to the Sentencing Guidelines, defendant's third motion is DENIED.

                                                  DISCUSSION

I.      Plea Agreement

        In the plea agreement, defendant waived his right to challenge his conviction and

sentence. Specifically, in paragraph eight of the plea agreement:

                  Defendant knowingly and voluntarily waivesthe right to appeal
                  from any aspect of the conviction and sentence of any grounds,
                  including his right to challenge that he is a career offender, except
                  for a claim that: ( 1) the sentence imposed exceeds the statutory
                  maximum, or (2) the Court arrives at an advisory sentencing
                  guideline range by applying an upward departure under the
                  provisions ofU.S.S.G. Chapters 4 or 5K, or (3) the Court exercises
                  its discretion under 18 U.S.C. § 3553(a) to impose a sentence
                  which exceed the advisory guideline sentencing range.

1
 ECF refers to the Clerk's Docket Records and is followed by the document number.
2
 Because this is a rule of civil procedure, not criminal procedure, it cannot provide relief from a criminal
conviction.
           Case 6:09-cr-60058-MC             Document 47          Filed 07/22/14       Page 3 of 5




ECF No. 20.

        Courts regularly enforce knowing and voluntary waivers of a defendant's appeal rights.

United States v. Jeronimo, 398 F.Jd 1149, 1152-53 (9th Cir. 2005). If the waiver is knowing and

voluntary, the court ceases inquiry into the waiver's validity; "the valid waiver bars [the

defendant's] underlying challenges to his conviction and sentence and [the Court] must dismiss

the appeal." United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). Proper enforcement

of post-conviction waivers plays a vital role in the judicial administrative process in that it

"preserves the finality of judgments and sentences imposed pursuant to valid plea agreements."

United States v. Baramdyka, 95 F .3d 840, 843 (9th Cir. 1996).

        Defendant does not raise any issues preserved in the plea agreement. Defendant has not

alleged that his sentence exceeded the statutory maximum, that the court departed upward under

the Sentencing Guidelines, that the court imposed a sentence in excess of the Guidelines range,

or ineffective assistance of counsel. Additionally, defendant does not contend that his waiver or

appeal was not knowing and voluntary. Rather, defendant challenges his conviction by alleging

that the government breached the plea agreement by failing to adhere to the base offense level

stipulation and that the enactment of the CSA violates the Tenth Amendment. 3 Defendant's

current challenges to his conviction and sentence are precisely the types of challenges that he

waived in his plea agreement. Because defendant does not raise challenges to his conviction

preserved in the plea agreement, defendant's first two motions are DENIED.




3
  Even if defendant could raise the argument that the CSA violates the Tenth Amendment, the Ninth Circuit has
repeatedly held that Congress had the power to enact the CSA under the Commerce Clause. See United States v.
Bramble, 103 F.3d 1475, 1479-80 (9th Cir. 1996); United States v. Visman, 919 F.2d 1390, 1393 (9th Cir. 1990).
          Case 6:09-cr-60058-MC         Document 47       Filed 07/22/14     Page 4 of 5




II.    Sentence Reduction

       Defendant argues that he is entitled to a sentencing reduction pursuant to 18 U.S. C. §

3582(c)(2). However, defendant's current sentence is not based on a sentencing range that has

since been lowered by the Sentencing Commission.

       As a general rule, an imprisonment sentence imposed by a court is final, and a court may

not modify a term of imprisonment. 18 U.S.C. §§ 3582(b) and (c) (2012); Dillon v. United

States, 560 U.S. 817, 824 (2010). However, there is an exception to this rule in§ 3582(c)(2),

which allows a court to reduce a prison sentence if it is based on a sentencing range that has

subsequently been lowered by the Sentencing Commission and if the reduction of said sentence

would be consistent with applicable policy statements issued by the Sentencing Commission. 18
                   •
U.S.C. § 3582(c)(2); see also United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009).

       Defendant moves for a reduced sentence pursuant to the "All Drugs Minus Two Act,"

which would reduce the base offense level for all drug quantities by two. As such, defendant

argues that his offense level should now be 27 instead of29, meaning the guideline range for his

sentence becomes 130-162 months rather than the 180 months of his original sentence. However,

the "All Drugs Minus Two Act" only created a proposed amendment to the Sentencing

Guidelines, and has not yet been enacted. See Amendments to the Sentencing Guidelines, April

30, 2014, at 21. If the amendment is indeed enacted, it will not take effect until November 1,

2014. Therefore, the Sentencing Commission has yet to actually lower defendant's original

sentencing range, meaning that defendant does not qualify for a reduced sentence.

       The government argues defendant's motion also fails because the Sentencing

Commission did not make the proposed amendment retroactive. While this is a strong argument,




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         Case 6:09-cr-60058-MC         Document 47        Filed 07/22/14    Page 5 of 5




this issue is not yet ripe as the proposed amendment is not final and in fact could change or not

be enacted by Congress in the first place.

       Because defendant's motion to reduce his sentence is based on a proposed amendment to

the Sentencing Guidelines, the motion is DENIED.

                                         CONCLUSION

       Defendant's motions challenging his conviction (ECF No. 30, 33) are DENIED.

Defendant's motion for a reduced sentence (ECF No. 44) is DENIED.

IT IS SO ORDERED.


               DATED this 1..'Lday of July, 2014.


                                                     \          \.
                                                        Michael McShane
                                                    United States District Judge


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