ORDER RE: MOTION TO REDUCE SENTENCE PURSUANT TO 18 U.S.C. § 3582(c)(2)

WILLIAM B. SHUBB, District Judge.

On March 14, 2011, defendant Adrian Ortega-Diaz pleaded guilty to Counts One and Three of the Indictment pursuant to a written plea agreement. (Docket No. 177.) Count One charged defendant with conspiracy to possess with intent to distribute over 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), and Count Three charged him with conspiracy to manufacture over 1000 plants of marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). (Presentence Report ("PSR") ¶ 1.)

At defendant's sentencing hearing on September 12, 2011, the court found that defendant's total offense level was 34 and his criminal history category was II, resulting in a guideline range of 168 to 210 months. (Docket No. 203; PSR ¶ 5.) After considering the factors in 18 U.S.C. § 3553(a), the court varied downward from the guideline range and imposed a sentence of 135 months on each of Counts One and Three, to be served concurrently. (Docket Nos. 206, 226.)

Defendant moves to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines ("U.S.S.G."). (Mot. (Docket No. 275).)1 That amendment retroactively modifies § 2D1.1's Drug Quantity Table and reduces by two points the base offense level for most federal drug offenses. See U.S.S.G. app. C supp., amend. 782 (2014). Pursuant to Amendment 782, defendant's amended total offense level is 32 and his criminal history category is II, which results in an amended guideline range of 135 to 210 months.

To grant a motion under 18 U.S.C. § 3582(c)(2), the "court must first determine that a reduction is consistent with § 1B1.10." Dillon v. United States, 560 U.S. 817, 826-27 (2010). Section 1B1.10 provides that "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." U.S.S.G. § 1B1.10(b)(2)(A) (2015).2 Because defendant's original sentence of 135 months is at the bottom of his amended guideline range, defendant is ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). E.g., United States v. Tercero, 734 F.3d 979, 981 (9th Cir. 2013) (holding that "the district court correctly interpreted and applied both § 3582(c) and § 1B1.10" in denying the defendant's motion to reduce his sentence "because U.S.S.G. § 1B1.10(b)(2)(A) prohibits reductions below the low end of the adjusted Guidelines range").

Defendant acknowledges that, under the current version of § 1B1.10, "district courts cannot reduce a sentence below the bottom of [the] amended range and generally cannot consider departures or variances in determining a defendant's eligibility for a § 3582(c)(2) reduction." (Mot. at 3.) Defendant argues, however, that the current version of § 1B1.10 violates the Ex Post Facto Clause of the United States Constitution because under the version of § 1B1.10 that was in effect in July 2008, when defendant committed his offenses, a district court had discretion to lower a defendant's sentence below the amended guidelines range. (Id. at 4-7.) Defendant thus asks the court to apply the version of § 1B1.10 contained in the 2007 Guidelines Manual and its May 1, 2008 Supplement and reduce his sentence to 120 months. (Id. at 6.)

The version of § 1B1.10 contained in the 2007 Guidelines Manual and its May 1, 2008 Supplement provided that, if a defendant was originally sentenced below the guideline range applicable to the defendant at the time of sentencing, "a reduction comparably less than the amended guideline range . . . may be appropriate." U.S.S.G. § 1B1.10(b)(2)(B) (2007 & Supp. May 1, 2008). "However, if the original term of imprisonment constitute[d] a non-guideline sentence determined pursuant to 18 U.S.C. § 2553(a) . . ., a further reduction generally would not be appropriate." Id. The court here originally sentenced defendant to a term that was below the applicable guideline range pursuant to the factors in 18 U.S.C. § 2553(a). (See Docket Nos. 206, 226.) As a result, a further reduction of defendant's sentence "would not be appropriate" even under the version of § 1B1.10 that defendant asks this court to apply. See U.S.S.G. § 1B1.10(b)(2)(B) (2007 & Supp. May 1, 2008).

On November 1, 2011, the Sentencing Commission issued Amendment 759, which limited the district court's discretion to reduce a defendant's sentence below the amended guideline range to "cases involving a government motion to reflect the defendant's substantial assistance to authorities." U.S.S.G. app. C (vol. III), amend. 759 at 420 (2011). Amendment 759 made clear that "the general limitation in [§ 1B1.10] continues to be that the court shall not reduce the defendant's term of imprisonment to a term that is less than the minimum of the amended guideline range." Id. The amendment provided that "the court shall use the version of [the § 1B1.10 policy statement] that is in effect on the date on which the court reduces the defendant's term of imprisonment." Id. § 1B1.10 cmt. n.6 (2011).

The Ex Post Facto Clause prohibits "the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred." Weaver v. Graham, 450 U.S. 24, 30 (1981) (citing U.S. Const. art. I, § 9, cl. 3). By its nature, a proceeding under 18 U.S.C. § 3582(c)(2) does not have any bearing on the Ex Post Facto Clause because it cannot increase a punishment; rather, such a proceeding "only applies when a change in sentencing has occurred which will make a law more lenient." United States v. Diggs, 768 F.3d 643, 645 (7th Cir. 2014).

For an amendment to the Sentencing Guidelines to violate the Ex Post Facto Clause, the amendment must present a "sufficient risk of increasing the measure of punishment attached to the covered crimes." Peugh v. United States, 133 S.Ct. 2072, 2082 (2013) (citation omitted). "[T]here is an ex post facto violation when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense." Id. at 2078. Amendment 759's restriction on the court's discretion to reduce defendant's sentence below the amended guideline range did not increase defendant's punishment here above what it was at the time he committed his crimes in July 2008. Amendment 759 thus does not violate the Ex Post Facto Clause because it did not increase the punishment "assigned by law when the act to be punished occurred." Weaver, 450 U.S. at 30.

In United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (per curiam), Ninth Circuit held that a district court's application of the post-Amendment 759 version of § 1B1.10 does not violate the Ex Post Facto Clause despite making a defendant ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Id. at 681 (citing Diggs, 768 F.3d at 644-46). Like defendant here, Waters had received a generous downward departure at his initial sentencing and later moved to reduce his sentence under § 3582(c)(2). Id. at 680. And like defendant here, Waters argued that the court should have applied the version of § 1B1.10 as it existed at the time of his offense on the ground that Amendment 759 violated the Ex Post Facto Clause by restricting the district court's discretion to lower a defendant's sentence below the amended guidelines. Id.

The Ninth Circuit rejected that argument and held that, "so long as the effect of post-conduct amendments to the guidelines is not to increase a defendant's punishment beyond what it would have been without those amendments, there is no ex post facto problem." Id. at 681 (citation and alterations omitted); see also Moor v. Palmer, 603 F.3d 658, 663 (9th Cir. 2010) ("[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of `disadvantage,' nor . . . on whether an amendment affects a prisoner's opportunity to take advantage of provisions for early release." (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995)). Because defendant here advances essentially the same argument that was rejected in Waters, his argument fails.

Accordingly, because the current version of § 1B1.10 does not violate the Ex Post Facto Clause and because defendant originally received a sentence at the bottom of his amended guideline range, defendant does not qualify for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and the court must deny his motion.

IT IS THEREFORE ORDERED that defendant's amended motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), (Docket No. 278), be, and the same hereby is, DENIED.