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U.S. v. Gomez-Jimenez, 5:11-CR-375-D-2. (2018)

Court: District Court, E.D. North Carolina Number: infdco20180621c99 Visitors: 6
Filed: Jun. 20, 2018
Latest Update: Jun. 20, 2018
Summary: ORDER JAMES C. DEVER, III , Chief District Judge . On August 20, 2012, without a written plea agreement, Erasto Gomez-Jimenez ("Gomez-Jimenez") pleaded guilty to conspiracy to distribute and possess with the intent to distribute 280 grams of more of cocaine base (crack) and 5 kilograms or more of cocaine (count one), and possession with the intent to distribute 280 grams of more of cocaine base (crack) and 5 kilograms or more of cocaine and aiding and abetting (count six). See [D.E. 81, 1
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ORDER

On August 20, 2012, without a written plea agreement, Erasto Gomez-Jimenez ("Gomez-Jimenez") pleaded guilty to conspiracy to distribute and possess with the intent to distribute 280 grams of more of cocaine base (crack) and 5 kilograms or more of cocaine (count one), and possession with the intent to distribute 280 grams of more of cocaine base (crack) and 5 kilograms or more of cocaine and aiding and abetting (count six). See [D.E. 81, 145]. On December 4, 2012, the court held Gomez-Jimenez's sentencing hearing. See [D.E. 118, 140]. At the hearing, the court ruled on certain objections and adopted the facts set forth in the Presentence Investigation Report ("PSR") [D.E. 105]. See Fed. R. Crim. P. 32(i)(3)(A)-(B); Sentencing Tr. [D.E. 140] 4-23. The court calculated Gomez-Jimenez's total offense level to be 35, his criminal history category to be I, and his advisory guideline range to be 168 to 210 months' imprisonment. See Sentencing Tr. at 4-23. After thoroughly considering all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Gomez-Jimenez to 180 months' imprisonment. See id. at 23-32. Gomez-Jimenez appealed. On April 24, 2014, the United States Court of Appeals for the Fourth Circuit affirmed this court's judgment. See United States v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014).

On November 2, 2015, Gomez-Jimenez moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10, and Amendment 782. See [D.E. 164]. Gomez-Jimenez's new advisory guideline range is 135 to 168 months' imprisonment, based on a total offense level of 33 and a criminal history category of I. See Resentencing Report. Gomez-Jimenez requests a 145-month sentence per count to run concurrent. See id.; [D.E. 58].

The court has discretion under Amendment 782 to reduce Gomez-Jimenez's sentence. See, e.g., Chavez-Meza v. United States, No. 17-5639, 2018 WL 3013811, at *4-7 (U.S. June 18, 2018); Dillon v. United States, 560 U.S. 817, 827 (2010); United States v. Peters, 843 F.3d 572, 574 (4th Cir. 2016); United States v. Patterson, 671 F. App'x 105, 105-06 (4th Cir. 2016) (per curiam) (unpublished); United States v. Cole, 618 F. App'x 178, 178-79 (4th Cir. 2015) (per curiam) (unpublished); United States v. Thomas, 546 F. App'x 225, 225-26 (4th Cir. 2013) (per curiam) (unpublished); United States v. Perez, 536 F. App'x 321, 321 (4th Cir. 2013) (per curiam) (unpublished); United States v. Smalls, 720 F.3d 193, 195-97 (4th Cir. 2013); United States v. Mann, 709 F.3d 301, 306-07 (4th Cir. 2013); United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010). In deciding whether to reduce Gomez-Jimenez's sentence, the court finds that Gomez-Jimenez engaged in serious criminal behavior. See PSR ¶¶ 10-15. Moreover, Gomez-Jimenez has convictions for resisting a public officer and driving while impaired. See id. ¶¶ 17-18. Gomez-Jimenez also has little work history. See id. ¶¶ 33-35. Gomez-Jimenez has taken some positive steps while incarcerated on his federal sentence, but he has been sanctioned for being in an unauthorized area. See Resentencing Report; cf. Pepper v. United States, 562 U.S. 476, 491 (2011).

Having reviewed the entire record and all relevant policy statements, the court finds that Gomez-Jimenez received the sentence that was "sufficient, but not greater than necessary" under 18 U.S.C. § 3553(a). Further reducing Gomez-Jimenez's sentence would threaten public safety in light of his serious criminal conduct, criminal history, and misconduct while incarcerated. Cf. U.S.S.G. § 1B1.10, cmt. n.1(B)(ii). Thus, the court denies Gomez-Jimenez's motion for reduction of sentence under Amendment 782. See, e.g., Chavez-Meza, 2018 WL 3013811, at *4-7; Patterson, 671 F. App'x at 105-06; Cole, 618 F. App'x at 178-79; Thomas, 546 F. App'x at 225-26; Perez, 536 F. App'x at 321.

In sum, the court DENIES Gomez-Jimenez's motion for reduction of sentence [D.E. 164].

SO ORDERED.

Source:  Leagle

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