United States District Court, D. Hawaii
ORDER DENYING MOTION FOR SENTENCING REDUCTION
PURSUANT TO AMENDMENT 782
Oki Mollway United States District Judge.
to Amendment 782, Defendant Christopher Niu seeks a reduction
of his sentence arising out of a drug crime. Because
Niu’s sentence is already lower than his amended
guideline range, he is not entitled to a further reduction of
his sentence. The court therefore denies his motion to reduce
October 9, 2007, Niu pled guilty to a drug conspiracy crime
pursuant to a Memorandum of Plea Agreement. See ECF
Nos. 166, 167. Specifically, Niu pled guilty to Count 1 of
the Second Superseding Indictment, which charged him with
conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine, its salts,
isomers and salts of its isomers. In the Memorandum of Plea
Agreement, Niu agreed that he was responsible for conspiring
to distribute 3, 494.2 grams of actual methamphetamine.
See ECF No. 167, PageID # 500-01.
preparation for Niu’s sentencing, the United States
Probation Office for the District of Hawaii prepared a
Presentence Investigation Report. See ECF No. 235,
PageID #s 694-726. This court adopted the Presentence
Investigation Report without change. See Statement
of Reasons, ECF No. 235, PageID # 738; see also
Minutes of Sentencing Proceeding, ECF No. 199.
sentenced to 225 months imprisonment, 5 years of supervised
release, and a $100 monetary penalty. See Judgment,
ECF No. 202. This sentence was below Niu’s advisory
guideline range. To determine that range, the court used the
United States Sentencing Commission Guidelines Manual
effective November 1, 2007. Based on 3, 492.2 grams of actual
methamphetamine, Niu’s base offense level was 38
according to U.S.S.G. § 2D1.1. Niu received a 4-level
increase pursuant to U.S.S.G. § 3B1.1(a) because he was
an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive. Niu
received a two-level decrease for demonstrating an acceptance
of responsibility and a one-level decrease for notifying the
Government of his intention to enter a guilty plea in a
timely manner pursuant to U.S.S.G. §§ 3E1.1(a) and
(b). This gave Niu a total offense level of 39. Because Niu
had a criminal history category of II, his advisory guideline
range was 292 to 365 months imprisonment. See ECF
No. 235, PageID #s 705-09.
December 7, 2015, Niu moved for a reduction of his sentence
pursuant to Amendment 782. That motion is denied.
See ECF No. 231.
court may not normally alter a term of imprisonment after it
has been imposed. See United States v. Ornelas, ___
F.3d ___, 2016 WL 3126272 (9th Cir. June 3, 2016).
However, under 18 U.S.C. § 3582(c)(2), this court is
authorized to modify a prison sentence when a sentencing
range has subsequently been lowered by the Sentencing
Commission. See also United States v. Dunn, 728 F.3d
1151, 1155 (9th Cir. 2013) (“Section
3582(c)(2) authorizes district courts to modify an imposed
sentence ‘in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission.’” (quoting 18 U.S.C. §
3582(c)(2)); U.S.S.G. § 1B1.10(a)(1) (“In a case
in which a defendant is serving a term of imprisonment, and
the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the
Guidelines Manual listed in subsection (d) below, the court
may reduce the defendant’s term of imprisonment as
provided by 18 U.S.C. 3582(c)(2). As required by 18 U.S.C.
3582(c)(2), any such reduction in the defendant’s term
of imprisonment shall be consistent with this policy
United States Supreme Court has interpreted 18 U.S.C. §
3582(c)(2) as establishing a two-step inquiry. First, the
court determines whether a defendant is eligible for a
sentence reduction based on a guideline that has been lowered
by the Sentencing Commission after the date the defendant was
sentenced. Second, the court considers whether a reduction is
warranted pursuant to the sentencing factors set forth in 18
U.S.C. § 3553(a). Dillon, 560 U.S. at 826-28.
Niu is not eligible for a sentence reduction under
Dillon’s first step. This court therefore does
not reach the second step of the inquiry.
November 1, 2014, Amendment 782 to the United States
Sentencing Guidelines became effective, lowering the base
level offense for certain drug crimes listed in U.S.S.G.
§ 2D1.1 by two levels. See United States v.
Navarro, 800 F.3d 1104, 1107 (9thCir. 2015);
United States v. Taylor, 778 F.3d 667, 672
(7th Cir. 2015). The Sentencing Commission
provided that Amendment 782 would apply retroactively to
previously sentenced defendants. U.S.S.G. §§
Amendment 782, Niu’s amended base level offense would
be a level 36, rather than the level 38 at the time of his
sentencing. Compare U.S.S.G. § 2D1.1 (effective
November 1, 2015) with U.S.S.G. § 2D1.1
(effective November 1, 2007). Lowering Niu’s base level
offense by two levels would correspondingly result in the
lowering of his total offense level by two levels, giving him
an amended total offense level of 37 and a criminal history
category of II. Niu’s applicable amended advisory
guideline range would be 235 to 293 months imprisonment.
Niu’s 225-month sentence is below the amended guideline
range of 235 to 293 months, and because Niu did not receive a
lower sentence pursuant to a Government motion for
substantial assistance, the court may not reduce Niu’s
sentence further. U.S.S.G. § 1B1.10(b)(2) (except when
substantial assistance is applicable, “the court shall
not reduce the defendant’s term of imprisonment under
18 U.S.C. 3582(c)(2) and this policy statement to a term that
is less than the minimum of the amended guideline
range”); Ornelas, ___ F.3d ___, 2016 WL
3126272 (“if the defendant’s term of imprisonment
is less than the minimum of the amended guideline range, then
the defendant is ineligible for a sentence reduction”);
United States v. Davis, 739 F.3d 1222, 1224-25
(9th Cir. 2014) (affirming district court’s
denial of motion to reduce sentence that relied on U.S.S.G.
§ 1B1.10(b)(2) to hold that court may not reduce