United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES United States District Judge
the Court is  Fernandez's motion for a sentence
modification under 18 U.S.C. § 3582(c)(2). The Court
sentenced Fernandez on November 26, 2012 to 144 months of
imprisonment on one count of conspiracy to distribute cocaine
knowing and intending that it will be unlawfully imported
into the United States. See Judgment [ECF No. 299].
In rendering this sentence, the Court calculated that
Fernandez's base offense level was 38; Fernandez then
received both a two-level safety valve reduction and a
three-level acceptance of responsibility reduction, for a
final level of 33. See Sentencing Tr. [ECF No. 323]
at 15:22-:24. In his plea agreement, Fernandez had agreed
that he was “accountable for distribution of one
hundred and fifty (150) kilograms or more of cocaine.”
Plea Agreement [ECF No. 247] ¶ 8a. At the time, 150
kilograms was the floor for receiving a base offense level of
38, the highest level possible based solely on drug quantity.
See U.S.S.G. § 2D1.1(a)(5), (c)(1) (2009).
However, Amendment 782 to the Guidelines raised to 450
kilograms the amount of cocaine necessary to receive that
offense level, see id. app. C, amend. 782, and
Amendment 788 made that change retroactive, see id.
app. C, amend. 788. Fernandez argues that Amendment 782
reduces his base offense level, and thus his Guidelines
range, such that he should be resentenced. See Mot.
for Relief [ECF No. 417] at 3-4.
may reduce a defendant's sentence if the defendant
“has been sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). To
determine whether a reduction is warranted, the Court must
“begin by ‘determin[ing] the amended guideline
range that would have been applicable to the defendant'
had the relevant amendment been in effect at the time of the
initial sentencing.” United States v. Wyche,
741 F.3d 1284, 1292 (D.C. Cir. 2014) (quoting Dillon v.
United States, 560 U.S. 817, 827 (2010)). “If the
defendant is eligible for a reduced sentence . . ., the court
must then ‘consider any applicable § 3553(a)
factors and determine whether, in its discretion, the
reduction . . . is warranted in whole or in part under the
particular circumstances of the case.'”
Id. (quoting Dillon, 560 U.S. at 827).
While “a resentencing court is permitted to make an
independent drug quantity finding if it cannot determine the
defendant's amended guideline range without doing so,
” the court's “quantity finding cannot be
inconsistent with factual determinations made by the original
sentencing court.” Id. at 1293.
argues that, as he admitted to being accountable for only 150
kilograms of cocaine, he should be subject to the amended
guideline subjecting that amount of cocaine to a base offense
level of 36. The government, on the other hand, argues that
Fernandez actually acknowledged responsibility for the
distribution of 2, 700 kilograms of cocaine, well over the
current floor needed to maintain a base offense level of 38.
See Gov't's Opp'n [ECF No. 419] at 5-6.
The government has the better of the argument. The amount for
which Fernandez agreed to accept accountability-150
kilograms-triggered the highest possible base offense level.
“Having established that [Fernandez] was responsible
for more than [150 kilograms], the Government was not
required to prove-and had no reason to argue-that [Fernandez]
was responsible for any amount of cocaine” over 150
kilograms. Wyche, 741 F.3d at 1294. But examining
the PSR and the record, as the Court may do in analyzing a
motion for sentence modification, see id., it is
clear that Fernandez conspired to distribute significantly
more than the 450 kilograms of cocaine necessary to maintain
his existing base offense level.
statement of facts which Fernandez signed as part of his plea
agreement, he admitted that “in Barranquilla, Colombia,
[he], acting in concert with several of his co-defendants,
caused the distribution of approximately 2700 kilograms of
cocaine, ” whose “ultimate destination . . . was
the United States.” Statement of Facts [ECF No. 248]
¶ 16. The government gave this same description of the
offense at Fernandez's plea hearing, and Fernandez agreed
that it was truthful. See Plea Hr'g Tr. [ECF No.
408-11] at 29:12-31:20. At sentencing, the Court noted
repeatedly that Fernandez was involved “on more than
just a participant level in the events that I'm calling
the 2700 kilograms of cocaine in the Barranquilla
area.” Sentencing Tr. at 16:22-:24; see also
Id. at 17:21-:22 (“Obviously, he was a significant
participant in those events, as well as other events that are
within the conspiracy . . . .”). The government argued
for a sentence at the top of the Guidelines range
“because he was a key participant in the 2700-ton
load.” Id. at 19:20-:21. In announcing the
sentence, the Court stated: “I would particularly
focus, as established through the transcripts of calls
presented to me, on the Barranquilla distribution events that
we've discussed but also involved in other events that
are part of the conspiracy.” Id. at 29:16-:19.
Finally, the PSR discussed the Barranquilla
incident-including the drug quantity to be distributed-as
part of the offense conduct. See Final Presentence
Investigation Rep. [ECF No. 289] ¶¶ 35-37.
Fernandez never disputed these facts, and the Court
explicitly “accept[ed] the [PSR] as findings of fact on
issues that are not in dispute.” See
Sentencing Tr. at 3:35-4:7, 14:16-:17.
clear that Fernandez engaged in joint criminal activity to
distribute 2, 700 kilograms of cocaine, and that the acts
required to distribute that cocaine were reasonably
foreseeable, such that the entire drug quantity can be
attributed to Fernandez under the Guidelines. See
U.S.S.G. § 1B1.3(a)(1)(B), note 3; United States v.
Davison, 761 F.3d 683, 685 (7th Cir. 2014). Thus, no
further factual findings are required to determine the actual
drug quantity for which Fernandez is responsible. See
Wyche, 741 F.3d at 1293. To the extent any clarification
is necessary, the Court hereby clarifies that Fernandez is
accountable for 2, 700 kilograms of cocaine. See,
e.g., United States v. Green, 764 F.3d 1352,
1357 (11th Cir. 2014). Because Fernandez is accountable for an
amount of cocaine that still equates to a base offense level
of 38, his sentencing range has not “subsequently been
lowered by the Sentencing Commission.” 18 U.S.C. §
motion for a sentence modification is therefore
 In his motion for sentence reduction,
Fernandez reserved the right to ask for counsel and for an
evidentiary hearing should the government oppose his motion.
See Mot. for Relief at 2. Fernandez did not formally
make such a request in his reply, see Response to
the Gov't [ECF No. 420], but the Court finds that neither
counsel nor an evidentiary hearing is warranted. First,
“[p]ost-trial proceedings to reduce a sentence . . .
are not a ‘critical stage' of the ‘criminal
prosecution' triggering the sixth amendment right to
counsel.” 6 Wayne R. LeFave et al., Crim. Proc. §
26.4(e) (4th ed. 2017) (Westlaw); see United States v.
Webb, 565 F.3d 789, 794-95 (11th Cir. 2009) (collecting
cases finding there is no constitutional or statutory right
to counsel for § 3582 motions). Counsel is not necessary
here, as the Court is able to resolve Fernandez's motion
on the existing record.
For similar reasons, no hearing is needed. “When
any factor important to the sentencing determination is
reasonably in dispute, the parties shall be given an adequate
opportunity to present information to the court regarding
that factor.” U.S.S.G. § 6A1.3(a). This guideline
“sets a far lower threshold for a hearing” than
for actually finding an amendment applicable under §
3582(c)(2). United States v. Byfield, 391 F.3d 277,
280 (D.C. Cir. 2004). In this case, however, Fernandez
admitted that the government could prove beyond a reasonable
doubt at trial that he intentionally and significantly
participated in a scheme to distribute 2, 700 kilograms of
cocaine. See Statement of Facts ¶¶ 15-16,
19. Fernandez points to no factual information that colorably
challenges these findings-nor would he likely be able to, as
any factual findings at this stage must be consistent with
those found by the sentencing court. See Wyche, 741
F.3d at 1293. There is thus much evidence to prohibit a
sentence modification and nothing to suggest that one might
be allowed. And “something . . . outweighs ...