United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Gilberto Lerma-Plata's 
Motion for Sentencing Reduction Pursuant to 18 U.S.C. §
3582(c) (“Def.'s Motion”) (docketed as
“Retroactivity Prep Documents”), which the
Government opposes in its  Opposition to Defendant's
Motion Regarding Re-Sentencing (“Govt's
Opposition”). Defendant Gilberto Lerma-Plata
(“Defendant” or “Mr. Lerma-Plata”)
filed a  Reply to the Government's Opposition
(“Def.'s Reply”), and the motion is ripe for
consideration by this Court. Defendant requests that the
Court modify or reduce his sentence based on § 3582(c)
and Amendments 782 and 788 to the United States Sentencing
Guidelines (“U.S.S.G.”), which retroactively
reduced by two levels the offense levels assigned to certain
drug offenses. Upon consideration of the pleadings, the
relevant legal authorities, and the record as a whole, the
Court has determined that it shall DENY Defendant's 
Motion for Sentencing Reduction Pursuant to 18 U.S.C. §
3582(c) for the reasons described herein.
Lerma-Plata was charged by indictment with one count of
conspiracy to distribute 5 kilograms or more of cocaine and
with one count of conspiracy to distribute 1, 000 kilograms
or more of marijuana for importation into the United States,
in violation of 21 U.S.C. §§ 959, 960, 963 and 18
U.S.C. § 2 (Aiding and Abetting). Indictment, ECF No.
. On March 1, 2013, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), Mr. Lerma-Plata pled guilty to one
count of conspiracy to distribute 1, 000 kilograms or more of
marijuana knowing or intending that the marijuana would be
imported into the United States unlawfully, in violation of
21 U.S.C. §§ 959, 960, and 963 and 18 U.S.C. §
2. See Plea Agmt., ECF No. . Pursuant to the
terms of the plea agreement, the parties agreed that the
appropriate sentence of imprisonment should be 151 months.
After conducting a plea hearing, the Court accepted the plea
agreement, and, on October 24, 2013, this Court sentenced Mr.
Lerma-Plata to a term of 151 months imprisonment with credit
for time served. Judgment, ECF No. . Mr. Lerma-Plata did
not appeal his sentence and conviction and currently is
serving the term of imprisonment.
2014, the United States Sentencing Commission issued
Amendment 782, which retroactively reduced the offense level
for certain drug trafficking offenses. See U.S.S.G.
app. C, amend. 782 (2014). In light of Amendment 782, Mr.
Lerma-Plata filed this Motion for Sentencing Reduction
Pursuant to 18 U.S.C. § 3582(c) which is presently
before the Court. The instant motion was referred to the
United States Probation Office for the District of Columbia
(the “Probation Office”) for a recalculation of
Mr. Lerma-Plata's offense level and criminal history
category based on Amendment 782. The Probation Office filed a
Memorandum providing the Court with revised guideline
calculations. See Prob. Mem., ECF No. .
Specifically, the Probation Office explained that Mr.
Lerma-Plata was treated as an offender with a total offense
level of 34 and a criminal history category of I at the time
of his original sentencing. Id. The imprisonment
range under the guidelines was 151 to 188 months.
Id. Applying the two-level reduction based on
Amendment 782, the Probation Office found that Mr.
Lerma-Plata could now be treated as an offender with a total
offense level of 32 and a criminal history category of I.
Id. The imprisonment range under the revised
guidelines is 121 to 151 months, which is a difference of 30
to 37 months from the original calculations. Id. As
such, this Court needs to determine (1) whether or not Mr.
Lerma-Plata is eligible for a sentencing reduction, and (2)
whether or not the Court should exercise its discretion to
reduce Lerma-Plata's 151-month term of imprisonment under
his original sentence to a term of not less than 121 months
based on the revised guidelines.
a federal court “may not modify a term of imprisonment
once it has been imposed.” 18 U.S.C. § 3582(c);
see also Dillon v. United States, 560 U.S. 817, 819,
130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). However, section
3582(c) of Title 18 of the United States Code provides three
exceptions to this general rule. Specifically, the Court is
authorized to modify a term of imprisonment once imposed only
under one of these circumstances: (1) upon motion by the
Director of the Bureau of Prisons; (2) when expressly
permitted by statute or Federal Rule of Criminal Procedure
35; or (3) where the applicable sentencing guideline range
has been retroactively lowered by the Sentencing Commission.
18 U.S.C. § 3582(c)(1)-(2). Only the third scenario is
at issue in this case, 18 U.S.C. § 3582(c)(1)-(2).
determining whether a sentence reduction is warranted under
18 U.S.C. § 3582, this Court analyzes a defendant's
motion under a two-step inquiry, as set forth in Dillon
v. United States, 560 U.S. 817 (2010). The Court must
determine (1) if Mr. Lerma-Plata is eligible for a sentence
reduction under § 3582(c)(2), and if so (2) whether or
not a reduction is warranted in consideration of the factors
set out in 18 U.S.C. § 3553(a). Dillon, 560
U.S. at 827.
[I]n 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
… the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
18 U.S.C. § 3582(c)(2). The relevant policy statement is
section 1B1.10 of the sentencing guidelines, which 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). Even if a sentence was a result of a
Rule 11(c)(1)(C) plea agreement, a defendant may be eligible
for a sentence reduction if the sentence was based on a
Guideline range. United States v. Epps, 707 F.3d
337, 351 (D.C. Cir. 2017).
to § 3582(c)(2), the first step is determining if Mr.
Lerma-Plata's sentence is based on a sentencing range
that was subsequently lowered by the Sentencing Commission. A
Rule 11(c) agreement is based on a guideline range “so
long as that range was part of the framework the district
court relied on in imposing the sentence or accepting the
agreement.” Hughes v. United States, 138 S.Ct.
1765, 1775 (2018). At Mr. Lerma-Plata's sentencing
hearing and in accepting the plea agreement, this Court
referenced the sentencing guidelines. At the sentencing
hearing, the Court determined that Mr. Lerma-Plata's base
offense level was 32. Gov't. Ex. 1 at p. 87 ¶¶
8-10 (Sentencing Transcript). The Court added a two-level
increase because Mr. Lerma-Plata possessed a dangerous weapon
in connection with the conspiracy, as well as a two-level
increase for abuse of a position of trust because Mr.
Lerma-Plata's position as a police commander facilitated
his role in the conspiracy. However, the Court decreased Mr.
Lerma-Plata's offense level by two levels because he
accepted responsibility for his offense. Mr. Lerma-Plata had
a Category I criminal history, resulting in a total offense
level of 34. At the time the Guideline range was 151-188
months. As such, Mr. Lerma-Plata's sentence was based on
the Guideline range.
sentence must also have been one in which the Guideline range
has subsequently been lowered. As indicated by the Probation
Office's Memorandum, Mr. Lerma-Plata's original
offense level was 34, which resulted in a sentencing range of
151 to 188 months. See Prob. Mem., ECF No. . As
a result of Amendment 782, Mr. Lerma-Plata's offense
level is now 32, and the sentencing range is 121 to 151
months. Id. As such, Mr. Lerma-Plata is eligible for
a sentencing reduction because his original sentence was
based on a Guideline range that has subsequently been
despite Mr. Lerma-Plata's eligibility, a sentencing
reduction is unwarranted in consideration of the §
3553(a) factors. Once the Court has determined that a
defendant is eligible for a sentencing reduction, the Court
has the discretion to implement the requested sentence
reduction but is not required to do so. See Freeman v.
United States, 564 U.S. 522, 131 S.Ct. 2685, 2694, 180
L.E.2d 519 (2011); In re Sealed Case, 722 F.3d 361,
370 (D.C. Cir. 2013). Pursuant to § 3553(a), the Court
must consider, among other things, “the nature and
circumstances of the offense and the history and
characteristics of the defendant, ” “the need for
the sentence imposed, ” “the kinds of sentences
available, ” “the kinds of sentence and the
sentencing range established” by the guidelines,
“any pertinent policy statement” and “the
need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(1)-(7).
Pursuant to § 1B1.10, the Court may also consider the
defendant's post-conviction conduct.
first § 3553(a) factor, the “nature and
circumstances of the offense, and the history and
characteristics of the defendant, ” weighs strongly in
favor of denying Mr. Lerma-Plata's request for a
sentencing reduction. Mr. Lerma-Plata was a police commander
in Mexico who was on the payroll of the Gulf Cartel, a
violent organization which is known for trafficking cocaine
and marijuana from Mexico into Texas. Gov't. Ex. 1, 42
¶¶ 5-10; 43 ¶¶ 13-23; 37 ¶¶
15-21 (Sentencing Transcript). Mr. Lerma-Plata used his role
in law enforcement to alert the cartel about law enforcement
activities, and he ignored the cartel's operation,
therefore allowing the cartel to flourish. Id. at 40
¶¶ 2-18. He also was involved in protecting plaza
bosses, regional cartel leaders, and at least intended to
provide the cartel with various types of dangerous weapons,
including AR-15 rifles and AK-47 rifles. Id. at 40
¶¶ 2-5; Gov't. Ex. 2, ¶¶ 15-16
(Wiretap Transcript). Mr. Lerma-Plata urges the Court to
distinguish his case from those in United States v.
Galaviz, 183 F.Supp.3d 103 (D.D.C. 2013), and United
States v. Cook, 292 F.Supp.3d 1 (D.D.C. 2017), because
he was “one of several lower level participants who
suppled primarily information to a large drug
conspiracy.” Def.'s Reply ¶ 4. However, while
Mr. Lerma-Plata may not have been a high-ranking leader in
the Gulf Cartel, as a police commander, he held a position of
authority and trust which he abused by being intrinsically
involved in a violent drug cartel. Further, Mr. Lerma-Plata