UNITED STATES v. ARROYO MATA (2024)

ORDER

This case comes before the Court on Defendant Emerich Arroyo-Mata's motion [190] for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 821 to the United States Sentencing Guidelines. The Government opposes [191] this motion.¹

Amendment 821, made effective on November 1, 2023, provides a two-offense level reduction for defendants with zero criminal history points as long as ten requirements are satisfied.

On December 16, 2010, the Court sentenced Arroyo-Mata to 243 months of imprisonment followed by five years of supervised release for conspiracy to manufacture and possess with the intent to distribute at least fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and 846.²

As mentioned, Amendment 821 provides a two-offense level reduction so long as ten requirements are met. One such requirement is that “the defendant did not receive an adjustment under [U.S.S.G.] § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. [§] 848.” U.S.S.G. § 4Cl.l(a)(10).

Arroyo-Mata received a two-level upward adjustment under U.S.S.G. § 3B1.1 for his role in the offense. Still, he argues that because he was not engaged in a continuing criminal enterprise, he is still eligible for Amendment 821 relief. In other words, because U.S.S.G. § 4C1.1(a)(10) uses “and,” a defendant is disqualified for Amendment 821 relief only when he received an adjustment under U.S.S.G. § 3B1.1 and was engaged in a continuing criminal enterprise. This is a crafty argument, but it lacks merit.³

Most importantly, Arroyo-Mata asserts—in support of this argument—that the “and” used in U.S.S.G. § 4Cl.l(a)(10) is analogous to the “and” used in the safety-valve provision of 18 U.S.C. § 3553(f)(1). Thus, he cites United States v. Garcon, 54 F.4th 1274 (11th Cir. 2022) (en banc) (subsequent history omitted), for its holding that “and” in § 3553(f)(1) meant that a defendant needed to flout all three requirements before being excluded from safety valve relief. See [190] at 4 (“The text at issue in Garcon, the safety valve provision in 18 U.S.C. § 3553 (f)(1), uses “and” in exactly the same that the Sentencing Commission employed the word here.”); id. at 6 (arguing that “the ruling in Garcon would be binding on this Court”).

The problem for Arroyo-Mata is that two weeks ago, the Supreme Court in Pulsifer v. United States, 601 U.S. ––––, 144 S.Ct. 718, ––– L.Ed.2d –––– (2024), took precisely the opposite view from the Eleventh Circuit's view in Garcon.

In sum, Paragraph (f)(1)’s criminal-history requirement sets out an eligibility checklist. A defendant is eligible for safety-valve relief only if he satisfies each of the paragraph's three conditions. He cannot have more than four criminal-history points. He cannot have a prior three-point offense. And he cannot have a prior two-point violent offense. Because Pulsifer has two prior three-point offenses totaling six points, he is not eligible. It makes no difference that he does not also have a prior two-point violent offense.

Slip op. at 27–28.⁴ Because Arroyo-Mata admits the Sentencing Commission used “and” the same way in U.S.S.G. § 4Cl.l(a)(10) as in 18 U.S.C. § 3553(f)(1), Arroyo-Mata's argument falls flat in the face of Pulsifer.

Again, the Court notes that the parties do not include many arguments apart from Arroyo-Mata's citation to Garcon, 18 U.S.C. § 3553(f)(1), and the plain language of U.S.S.G. § 4C1.1(a)(10). That said, the Court endeavors to provide a more holistic analysis of this issue because it is likely to be raised again by other litigants in this district and across the country.

Canvassing this issue, the Court has found twenty-four reported decisions from federal district courts around the country.⁵ Every court thus far has rejected the argument that U.S.S.G. § 4C1.1(a)(10) precludes Amendment 821 relief only when a defendant received a U.S.S.G. § 3B1.1 adjustment and engaged in a continuing criminal enterprise.⁶ Principles of textual construction show why.

First, the plain language of U.S.S.G. § 4C1.1(a)(10) is clear. The provision prefaces each requirement for Amendment 821 relief by indicating that a defendant must meet “all of the following criteria.” U.S.S.G. § 4C1.1(a). Because both receiving an adjustment under U.S.S.G. § 3B1.1 and engaging in a continuing criminal enterprise are listed criteria, the presence of either destroys the capability to receive relief under Amendment 821. See, e.g., Castaneda Mendez, 2024 WL 216277, at *3 (“[T]he plain language and context of § 4C1.1(a)(10) is properly read to exclude any defendant who either had an aggravating role enhancement or engaged in a continuing criminal enterprise.”); United States v. Owusu, No. 3:18-cr-77-TKW, 2023 WL 9328368, at *1 (N.D. Fla. Nov. 21, 2023) (“Moreover, as a matter of logic, if a zero-point offender is only eligible for a 2-level decrease when both A and B are false, then it necessarily follows that he is not eligible if either A or B is true.”). This argument is developed in Gordon.

In the Court's view, the Government is clearly correct. Section 4C1.1(a) requires that the defendant meet “all of the following criteria,” including that he did not receive an aggravating role enhancement under § 3B1.1 and that he was not engaged in a continuing criminal enterprise as defined in 21 U.S.C. § 848. As Mr. Gordon cannot meet the first § 4C1.1(a)(10) criterion, it is irrelevant whether he can meet the second.

2023 WL 8601494, at *3 (citation omitted).

Second, the context of U.S.S.G. § 4Cl.l(a)(10) also comes out the same way. In Mahee, 2023 WL 8452433, at *2, the undersigned's colleague—Hon. Steven D. Grimberg—explained how U.S.S.G. § 4C1.1(a) emphasizes at every turn that Amendment 821 relief is available only when a defendant “did not” do any of the listed items.

Reading the full context makes clear that the Zero-Point Offender Adjustment can only apply when the defendant has not done any of the things listed. If a defendant (or the crime) meets just one of the listed factors, the adjustment is not available. To be eligible, then, Mahee cannot have received an Aggravating Role Adjustment. He cannot have been engaged in a CCE. The crime of which he was convicted cannot have been a sex offense. He cannot have used violence in the commission of the crime. And so on. Since he conceded he was subject to the Aggravating Role Adjustment and the Court applied it, Mahee is not eligible for the Zero-Point Offender Adjustment.

Id.

Third, Arroyo-Mata has the burden to show that he is entitled to a downward departure. See United States v. Onofre-Segarra, 126 F.3d 1308, 1310 (11th Cir. 1997) (citations omitted). In Medina, the court explained why this impacts the reading of U.S.S.G. § 4C1.1(a)(10).

It is well established in the Eighth Circuit that a defendant bears the burden of proving eligibility for a downward adjustment under the Sentencing Guidelines. It is equally well established that a defendant seeking relief under the safety value has the burden to show that each condition of 18 U.S.C. § 3553(f) has been satisfied. The zero-point offender provision is governed by these well-established principles because it is a downward adjustment and is akin to safety valve eligibility. Thus, a defendant seeking a two-level downward adjustment—whether at the time of the original sentencing or in a motion for retroactive relief—bears the burden of proving that he did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848. In other words, the use of the conjunctive “and” in section 4C1.1(a)(10) refers to what the defendant must prove to establish eligibility for the zero-point offender adjustment. As Medina cannot prove both aspects of [§] 4C1.1(a)(10), he is not eligible for the adjustment.

2023 WL 9417988, at *3 (cleaned up).

Fourth, another provision in 18 U.S.C. § 3553 also indicates why the Court's reading of U.S.S.G. § 4Cl.l(a)(10) is correct. As provided in 18 U.S.C. § 3553(f)(4), safety-valve relief is available where “the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise.” The Eleventh Circuit has held that where a defendant is an organizer of others in the offense, that fact alone is dispositive. United States v. Salas-Paredes, 278 F. App'x 889, 892 (11th Cir. 2008) (per curiam) (citation omitted). In Owusu, a federal district court within the Eleventh Circuit explained why this parallel legal provision supports the Court's reading of U.S.S.G. § 4C1.1(a)(10).

[T]he Court finds that the role adjustment that Defendant received under § 3B1.1 is sufficient in and of itself to disqualify him from eligibility for a 2-level reduction under § 4C1.1. The Court bases that finding on the appellate decisions that have construed the virtually identical language in § 5C1.2(a)(4) to preclude a defendant from qualifying for the “safety valve” if he received a role adjustment under the sentencing guidelines even if the defendant was not also engaged in a continuing criminal enterprise. The Court sees no reason why the reasoning in those cases would not apply to the similarly worded § 4Cl.l(a)(10).

Owusu, 2023 WL 9328249, at *1 (cleaned up).⁷

Thus, taken together, every argument and tenet of textual construction turns against Arroyo-Mata and similarly situated defendants.

Therefore, because Arroyo-Mata received a two-level upward adjustment under U.S.S.G. § 3B1.1 for his role in the offense, his motions [183 & 190] for Amendment 821 are DENIED because he fails to meet the requirements of U.S.S.G. § 4C1.1(a)(10).

IT IS SO ORDERED this 1st day of April, 2024.

FOOTNOTES

1.   Arroyo-Mata originally filed a pro se motion [183] for the same relief but then received court-appointed CJA counsel who filed the motion [190] now before the Court.

2.   The Court notes that Hon. William S. Duffey, Jr. (ret.) presided over most of the proceedings, including Arroyo-Mata's sentencing hearing.

3.   The Court notes that while this is a salient and interesting issue, Arroyo-Mata includes only a few paragraphs to this point. And the Government includes none in its response apart from stating that he received the U.S.S.G. § 3B1.1 enhancement and is thus precluded from relief.

4.   Pulsifer abrogated Garcon. Indeed, the Supreme Court in Pulsifer—on writ of certiorari to the Eighth Circuit—expressly acknowledged that its decision endeavored to resolve a circuit split. Because the Supreme Court took the Government's view of 18 U.S.C. § 3553(f)(1), the decision affirmed the Eighth Circuit and abrogated contrary holdings like Garcon in the Eleventh Circuit along with analogous holdings in the Fourth and Ninth Circuits.

5.   While the cited decisions below are voluminous and consistent among federal district courts, the Court notes that no federal appellate court has yet considered the issue before the Court.

6.   See United States v. Echeverria-Leon, No. 18-cr-20134, 2024 WL 1254356, at *2 (S.D. Fla. Mar. 25, 2024); United States v. Villa-Luna, No. 17-cr-1764-CKJ, 2024 WL 1240289, at *4 (D. Ariz. Mar. 22, 2024); United States v. Ambriz, No. 16-cr-5530-BHS, 2024 WL 1156453, at *3 (W.D. Wash. Mar. 18, 2024); United States v. Espinoza, No. 21-cr-1559-H, 2024 WL 1078252, at *3 (S.D. Cal. Mar. 12, 2024); United States v. Perez Sanchez, No. 16-cr-661-ARR, 2024 WL 1069884, at *2 (E.D.N.Y. Mar. 12, 2024); United States v. Barona Astaiza, No. 16-cr-661-ARR, 2024 WL 990109, at *1 (E.D.N.Y. Mar. 7, 2024); United States v. Ferreira, No. 21-cr-53-HG, 2024 WL 989591, at *2 (D. Haw. Mar. 7, 2024); United States v. Arias-Garcia, No. 09-cr-20005-KHV, 2024 WL 939930, at *1 (D. Kan. Mar. 5, 2024); United States v. Martinez-Sotelo, No. 17-cr-291-SPF, 2024 WL 946966, at *2 (W.D. Okla. Mar. 5, 2024); United States v. Quinonez-Quintero, No. 08-cr-20106-KHV, 2024 WL 939928, at *1 (D. Kan. Mar. 5, 2024); United States v. Fernandez, No. 21-cr-955-DLR, 2024 WL 915247, at *1 (D. Ariz. Mar. 4, 2024); United States v. Calimano, No. 17-cr-20815, 2024 WL 896351, at *2 (S.D. Fla. Mar. 1, 2024); United States v. Masuisui, No. 14-cr-173-DKW, 2024 WL 778297, at *8 (D. Haw. Feb. 26, 2024); United States v. Urias-Avilez, No. 15-cr-10152-JWB, 2024 WL 626165, at *2 (D. Kan. Feb. 14, 2024); United States v. Diaz-Pellegaud, No. 4:09-cr-40029, 2024 WL 417105, at *2 (D.S.D. Feb. 5, 2024); United States v. Read-Forbes, No. 12-cr-20099-KHV, 2024 WL 382638, at *1 (D. Kan. Feb. 1, 2024); United States v. Castaneda Mendez, No. 20-cr-20155-RAR, 2024 WL 216277, at *3 (S.D. Fla. Jan. 18, 2024); United States v. Gordon, No. 1:19-cr-7-JAW, 2023 WL 8601494, at *3 (D. Me. Dec. 12, 2023); United States v. Cruz, No. 4:15-cr-133-SHL, 2023 WL 9417990, at *3 (S.D. Iowa Dec. 12, 2023); United States v. Medina, No. 3:16-cr-7-SHL, 2023 WL 9417988, at *3 (S.D. Iowa Dec. 12, 2023); United States v. Rubio-Villarreal, No. 18-cr-241-SPF, 2023 WL 8461191, at *1 (W.D. Okla. Dec. 6, 2023); United States v. Vladimirov, No. 2:20-cr-54-ICB, 2023 WL 8529076, at *1 n.2 (S.D.W. Va. Dec. 8, 2023); United States v. Mahee, No. 1:21-cr-494-SDG, 2023 WL 8452433, at *2–3 (N.D. Ga. Dec. 6, 2023)); United States v. Owusu, No. 3:18-cr-77-TKW, 2023 WL 9328249, at *2 (N.D. Fla. Nov. 16, 2023).

7.   In Owusu, the court cited U.S.S.G. § 501.2(a)(4) instead of 18 U.S.C. § 3553(f)(4). This was simply a stylistic decision immaterial to the analysis: the Sentencing Commission set forth the exact language of 18 U.S.C. § 3553(f) into the Sentencing Guidelines, codified as U.S.S.G. § 5C1.2.

Timothy C. Batten, Sr., Chief United States District Judge