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`Case 3:10-cr-05016-H Document 1775 Filed 12/18/23 PageID.8250 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 10-cr-05016-H-1
`
`ORDER DENYING DEFENDANT’S
`SECOND MOTION FOR
`COMPASSIONATE RELEASE
`UNDER 18 U.S.C. § 3582(c)(1)(A)
`
`[Doc. No. 1768.]
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`MICHAEL EDWARD OTTINGER, JR.
`(1),
`
`Defendant.
`
`
`
`On October 6, 2023, Defendant Michael Edward Ottinger, Jr., proceeding pro se,
`filed a second motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).1 (Doc.
`No. 1768.) On December 15, 2023, the Government filed a response in opposition to
`Defendant’s second motion for compassionate release. (Doc. No. 1774.) For the reasons
`set forth below, the Court denies Defendant’s second motion for compassionate release.
`
`
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`
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`Defendant previously filed a motion to reduce his sentence pursuant to 18 U.S.C. §
`1
`3582(c)(1)(A)(i) on September 22, 2022, (Doc. No. 1739), which the Court denied on April
`17, 2023. (Doc. No. 1764.)
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`Case 3:10-cr-05016-H Document 1775 Filed 12/18/23 PageID.8251 Page 2 of 15
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`Background
`On October 6, 2011, the Government filed a second superseding indictment charging
`Defendant, among others, with one count of conspiracy to distribute methamphetamine in
`violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. No. 46.) On June 4, 2012, Defendant,
`pursuant to a plea agreement, pled guilty before the Magistrate Judge to the single count
`of conspiracy to distribute methamphetamine charged in the second superseding
`indictment. (Doc. Nos. 641, 647, 652.) On June 7, 2012, the Magistrate Judge issued her
`findings and recommendation, finding that Defendant’s plea of guilty was made knowingly
`and voluntarily; Defendant was competent to enter a plea; and there was a factual basis for
`Defendant’s plea, and recommending that this Court accept Defendant’s guilty plea. (Doc.
`No. 643). On June 21, 2012, this Court adopted the findings and recommendation of the
`Magistrate Judge and accepted the Defendant’s guilty plea to count 1 of the second
`superseding indictment. (Doc. No. 701.)
`On December 3, 2012, the Court sentenced Defendant to a custodial term of 262
`months (21 years and 10 months) followed by five years of supervised release. (Doc. Nos.
`998, 1018.) The Court entered a judgment on December 5, 2012. (Doc. No. 1018.)
`On November 18, 2013, Defendant filed a motion to vacate, set aside, or correct his
`sentence under 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel. (Doc.
`No. 1254.) On July 7, 2014, the Court denied Defendant’s § 2255 motion, and the Court
`denied Defendant a certificate of appealability. (Doc. No. 1450.) Defendant appealed the
`Court’s July 7, 2014 order to the United States Court of Appeals for the Ninth Circuit.
`(Doc. No. 1455.) On March 13, 2015, the Ninth Circuit denied Defendant’s request for a
`certificate of appealability. (Doc. No. 1535.) On December 15, 2020, the Court granted
`Defendant’s motion to compel U.S. Probation to amend his presentence report (“PSR”).
`(Doc. No. 1681.)
`On September 22, 2022, Defendant filed his first motion for compassionate release
`under 18 U.S.C. § 3582(c)(1)(A)(i). (Doc. No. 1739.) In support of his September 22,
`2022 motion for compassionate release, Defendant argued that two “extraordinary and
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`compelling reasons” were present in his case. (Doc. No. 1739-1 at 1-2; Doc. No. 1761 at
`1.) First, Defendant contended that the sentence he received containing a “career offender”
`enhancement is grossly disproportionate to the sentence he would have received had he
`been sentenced today following the passage of the First Step Act. (Id.) Second, Defendant
`argued that his age and pre-existing medical conditions place him at an increased risk of
`serious illness or death should he contract COVID-19. (Id. at 2.)
`
`On April 17, 2023, the Court denied Defendant’s September 22, 2022 motion for
`compassionate release. (Doc. No. 1764.) In the order, the Court concluded that there are
`no “extraordinary and compelling reasons” that would warrant a sentencing reduction.
`(See id. at 5-11, 14.) As to Defendant’s argument regarding the First Step Act, the Court
`explained that the argument failed because “even if the Court had sentenced Defendant
`after the passage of the First Step Act in 2018, he still would have qualified for a “career
`offender” enhancement under § 4B1.1(b)(1) resulting in an adjusted offense level of 37,
`and, therefore, the Court would have made the exact same sentencing calculations that it
`did in determining his sentence. (See id. at 5-11.) As to Defendant’s argument regarding
`the COVID-19 pandemic, the Court noted that Defendant has received consistent treatment
`for his medical conditions, received both doses of the Pfizer COVID-19 vaccine along with
`the Moderna booster, and that Defendant had contracted and recovered from COVID-19.
`(Id. at 11.) Thus, the Court concluded that Defendant’s pre-existing medical conditions
`coupled with the COVID-19 pandemic are not an extraordinary and compelling reason to
`reduce his sentence. (Id.) In addition, the Court denied Defendant’s September 22, 2022
`motion for compassionate release on the additional ground that after considering and
`weighing the § 3553(a) factors, the requested sentencing reduction is not warranted under
`the particular circumstances of Defendant’s case. (See id. at 12-14.)
`On May 8, 2023, Defendant appealed the Court’s denial of his September 22, 2022
`motion for compassionate release to the Ninth Circuit. (Doc. No. 1765.) Defendant’s
`appeal of his September 22, 2022 motion for compassionate release is currently pending
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`Case 3:10-cr-05016-H Document 1775 Filed 12/18/23 PageID.8253 Page 4 of 15
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`before the Ninth Circuit. By the present motion, Defendant moves a second time pursuant
`to 18 U.S.C. § 3582(c)(1)(A) to reduce his sentence of imprisonment. (Doc. No. 1768.)
`Discussion
`
`I.
`
`Legal Standards
`“‘A federal court generally “may not modify a term of imprisonment once it has
`been imposed.”’” United States v. Aruda, 993 F.3d 797, 799 (9th Cir. 2021) (quoting
`Dillon v. United States, 560 U.S. 817, 819 (2010); 18 U.S.C. § 3582(c)); accord United
`States v. Tadio, 663 F.3d 1042, 1046 (9th Cir. 2011); see also United States v. Barragan-
`Mendoza, 174 F.3d 1024, 1028 (9th Cir. 1999) (“[D]istrict courts do not have ‘inherent
`authority’ to reconsider sentencing orders.”). “But this general rule is subject to several
`exceptions.” United States v. Keller, 2 F.4th 1278, 1281 (9th Cir. 2021). One of those
`exceptions is the compassionate release provision in 18 U.S.C. § 3582(c)(1)(A). See
`Aruda, 993 F.3d at 799; United States v. Wright, 46 F.4th 938, 944 (9th Cir. 2022).
`Section 3582(c)(1)(A) provides:
`(c) Modification of an imposed term of imprisonment.--The court may not
`modify a term of imprisonment once it has been imposed except that--
`(1) in any case--
`(A) the court, upon motion of the Director of the Bureau of
`Prisons, or upon motion of the defendant after the defendant has
`fully exhausted all administrative rights to appeal a failure of the
`Bureau of Prisons to bring a motion on the defendant’s behalf or
`the lapse of 30 days from the receipt of such a request by the
`warden of the defendant’s facility, whichever is earlier, may
`reduce the term of imprisonment (and may impose a term of
`probation or supervised release with or without conditions that
`does not exceed the unserved portion of the original term of
`imprisonment), after considering the factors set forth in section
`3553(a) to the extent that they are applicable, if it finds that--
`(i) extraordinary and compelling reasons warrant such a
`reduction; or
`. . .
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`and that such a reduction is consistent with applicable policy
`statements issued by the Sentencing Commission . . . .
`18 U.S.C. § 3582(c)(1)(A); accord Aruda, 993 F.3d at 799–800.
`
`When as here a defendant moves for compassionate release under §
`3582(c)(1)(A)(i), a district court “may reduce his term of imprisonment if four conditions
`are met: (1) the defendant exhausted administrative remedies; (2) ‘extraordinary and
`compelling reasons’ warrant a sentence reduction; (3) a sentence reduction is ‘consistent
`with applicable policy statements’ issued by the U.S. Sentencing Commission; and (4) the
`district court considered the factors set forth in 18 U.S.C. § 3553(a).” United States v.
`Chen, 48 F.4th 1092, 1094–95 (9th Cir. 2022); see Wright, 46 F.4th at 945. “Although a
`district court must conclude that a defendant satisfies all [these] predicates before granting
`a motion for compassionate release, it may deny compassionate release if a defendant fails
`to satisfy any of these grounds.” Wright, 46 F.4th at 945 (citing Keller, 2 F.4th at 1284).
`The Ninth Circuit has explained that because “compassionate release derogates from
`the principle of finality, it is a ‘narrow’ remedy.” Id. at 944 (citing Freeman v. United
`States, 564 U.S. 522, 526 (2011)). Further, a district court’s “disposition of a
`compassionate release motion ‘is discretionary, not mandatory.’” Id. at 945 (quoting
`United States v. Jones, 980 F.3d 1098, 1106 (6th Cir. 2020)). In addition, “[a]s the movant,
`Defendant bears the burden of establishing that he is eligible for a sentence reduction.”
`United States v. Grummer, 519 F. Supp. 3d 760, 762 (S.D. Cal. 2021) (citing United States
`v. Jones, 836 F.3d 896, 899 (8th Cir. 2016)); see, e.g., Wright, 46 F.4th at 951 (“it was
`[defendant]’s burden to establish his eligibility for compassionate release”).
`II. Analysis
`A.
`Section 3553(a) Factors
`In considering a motion for compassionate release, a district court “must consider
`and weigh the factors set forth in 18 U.S.C. § 3553(a) to decide whether the requested
`sentence reduction is warranted ‘under the particular circumstances of the case.’” Wright,
`46 F.4th at 945. The § 3553(a) factors “include, among other things: (1) the defendant’s
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`personal history and characteristics; (2) his sentence relative to the nature and seriousness
`of his offense; (3) the need for a sentence to provide just punishment, promote respect for
`the law, reflect the seriousness of the offense, deter crime, and protect the public; (4) the
`need for rehabilitative services; (5) the applicable sentence guidelines; and (6) the need to
`avoid unwarranted sentencing disparities among similarly situated defendants.” Id. at n.4
`(citing 18 U.S.C. § 3553(a)).
`In its April 17, 2023 order denying Defendant’s September 22, 2022 motion for
`compassionate release, the Court considered and weighed the § 3553(a) factors as follows:
`Defendant was the Sergeant-at-Arms of the Hell’s Angels Motorcycle
`Club and had a supervisory role in a methamphetamine distribution ring in
`San Diego as part of his association with that club. (Doc. No. 906, PSR ¶¶ 5,
`13-20, 30; see also Doc. No. 1266 at 3.) Defendant has multiple prior felony
`convictions, including multiple convictions related to drug trafficking. (See
`Doc. No. 906, PSR ¶¶ 42-59.) Indeed, Defendant was determined to be a
`“career offender” under § 4B1.1(b)(1) due to his lengthy criminal history.
`(See Doc. No. 1266 at 22; Doc. No. 906, PSR ¶ 32.) Defendant’s history of
`drug trafficking demonstrates that he poses a danger to the public. See United
`States v. Enriquez, No. 3:17-CR-03293-BEN-1, 2021 WL 3772379, at *8
`(S.D. Cal. Aug. 24, 2021) (“‘[a] drug trafficker is, by legal definition, a danger
`to the community’” (quoting United States v. Ailemen, 165 F.R.D. 571, 596
`(N.D. Cal. 1996))); United States v. Rodriguez, No. 17CR1596-CAB, 2023
`WL 1934326, at *3 (S.D. Cal. Feb. 10, 2023) (“As courts have consistently
`recognized, the proliferation of dangerous addictive narcotics is a significant
`public and societal harm.”); United States v. Lopez-Ontiveros, No. 15-CR-
`575-GPC-1, 2020 WL 5909530, at *4 (S.D. Cal. Oct. 6, 2020) (Defendant
`“endangered the public by placing over 45 kilograms of methamphetamine
`into the community.”).
`In addition, Defendant was known to use violence or threats of violence
`to help control methamphetamine distribution activity for the Hell’s Angels.
`(Doc. No. 906, PSR ¶¶ 16, 20, 27; see also Doc. No. 1266 at 8-9.) Further,
`despite his attempts to demonstrate rehabilitation while in custody, a review
`of Defendant’s BOP record show that, during his time in custody, Defendant
`has been disciplined on multiple occasions, including for multiple incidents
`of assaulting another inmate. (See Doc. No. 1758, Ex. B.) Defendant’s
`history of violent conduct also demonstrates the danger to public safety that
`Defendant would pose if released.
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`Case 3:10-cr-05016-H Document 1775 Filed 12/18/23 PageID.8256 Page 7 of 15
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`In light of the seriousness of the offense, the Defendant’s criminal
`history, the need to promote respect for the law, to provide just punishment,
`and to afford adequate deterrence to criminal conduct, the Court sentenced
`Defendant to a custodial term of 262 months. Balancing these factors along
`with the factors raised by Defendant, (see Doc. No. 1739-1 at 20-26; Doc. No.
`1761 at 5-9), the Court concludes that a sentencing reduction is not warranted
`here, particularly in light of the underlying criminal conduct and the
`Defendant’s lengthy criminal history.
`(Id. at 12-13.)
`
`The Court’s reasoning, analysis, and ultimate conclusion regarding the § 3553(a)
`factors remain correct. As such, the Court denies Defendant’s October 6, 2023 motion for
`compassionate release on the ground that the requested sentencing reduction is not
`warranted after considering and weighing the § 3553(a) factors. See Wright, 46 F.4th at
`945 (explaining that a district court can deny a motion for compassionate release if the
`requested sentencing reduction is not warranted after considering and weighing the §
`3553(a) factors).
`B.
`Extraordinary and Compelling Reasons
`Although the Court denies Defendant’s October 6, 2023 motion for compassionate
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`release on the separate and independent ground that the requested sentencing reduction is
`not warranted after considering and weighing the § 3553(a) factors, the Court will also
`address Defendant’s contentions that extraordinary and compelling reasons warrant a
`sentencing reduction in his case. After considering Defendant’s arguments, Defendant has
`failed to demonstrate an “extraordinary and compelling reason” to reduce his sentence.
`Congress provided no statutory definition of “extraordinary and compelling reasons”
`in 18 U.S.C. § 3582(c)(1)(A). Aruda, 993 F.3d at 800. “Instead, Congress stated that the
`Sentencing Commission, ‘in promulgating general policy statements regarding the
`sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what
`should be considered extraordinary and compelling reasons for sentence reduction,
`including the criteria to be applied and a list of specific examples.’” Id. (quoting 28 U.S.C.
`§ 994(t)).
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`The Sentencing Commission’s policy statement regarding “Reduction in Term of
`
`Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)” can be found at U.S.S.G. § 1B1.13. Id.
`Section 1B1.13(b) provides:
`(b) Extraordinary and Compelling Reasons.--Extraordinary and compelling
`reasons exist under any of the following circumstances or a combination
`thereof:
`(1) Medical Circumstances of the Defendant.--
`(A) The defendant is suffering from a terminal illness (i.e., a
`serious and advanced illness with an end-of-life trajectory). A
`specific prognosis of life expectancy (i.e., a probability of death
`within a specific time period) is not required. Examples include
`metastatic solid-tumor cancer, amyotrophic lateral sclerosis
`(ALS), end-stage organ disease, and advanced dementia.
`(B) The defendant is--
`(i) suffering from a serious physical or medical condition,
`(ii) suffering from a serious functional or cognitive
`impairment, or
`(iii) experiencing deteriorating physical or mental health
`because of the aging process,
`that substantially diminishes the ability of the defendant to
`provide self-care within the environment of a correctional
`facility and from which he or she is not expected to
`recover.
`(C) The defendant is suffering from a medical condition that
`requires long-term or specialized medical care that is not being
`provided and without which the defendant is at risk of serious
`deterioration in health or death.
`(D) The defendant presents the following circumstances--
`(i) the defendant is housed at a correctional facility
`affected or at imminent risk of being affected by (I) an
`ongoing outbreak of infectious disease, or (II) an ongoing
`public health emergency declared by the appropriate
`federal, state, or local authority;
`(ii) due to personal health risk factors and custodial status,
`the defendant is at increased risk of suffering severe
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`medical complications or death as a result of exposure to
`the ongoing outbreak of infectious disease or the ongoing
`public health emergency described in clause (i); and
`(iii) such risk cannot be adequately mitigated in a timely
`manner.
`(2) Age of the Defendant.--The defendant (A) is at least 65 years old;
`(B) is experiencing a serious deterioration in physical or mental health
`because of the aging process; and (C) has served at least 10 years or 75
`percent of his or her term of imprisonment, whichever is less.
`(3) Family Circumstances of the Defendant.--
`(A) The death or incapacitation of the caregiver of the
`defendant’s minor child or the defendant's child who is 18 years
`of age or older and incapable of self-care because of a mental or
`physical disability or a medical condition.
`(B) The incapacitation of the defendant’s spouse or registered
`partner when the defendant would be the only available caregiver
`for the spouse or registered partner.
`(C) The incapacitation of the defendant’s parent when the
`defendant would be the only available caregiver for the parent.
`(D) The defendant establishes that circumstances similar to those
`listed in paragraphs (3)(A) through (3)(C) exist involving any
`other immediate family member or an individual whose
`relationship with the defendant is similar in kind to that of an
`immediate family member, when the defendant would be the
`only available caregiver for such family member or individual.
`For purposes of this provision, ‘immediate family member’
`refers to any of the individuals listed in paragraphs (3)(A)
`through (3)(C) as well as a grandchild, grandparent, or sibling of
`the defendant.
`(4) Victim of Abuse.--The defendant, while in custody serving the term
`of imprisonment sought to be reduced, was a victim of:
`(A) sexual abuse involving a “sexual act,” as defined in 18
`U.S.C. 2246(2) (including the conduct described in 18 U.S.C.
`2246(2)(D) regardless of the age of the victim); or
`(B) physical abuse resulting in “serious bodily injury,” as defined
`in the Commentary to § 1B1.1 (Application Instructions);
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`that was committed by, or at the direction of, a correctional
`officer, an employee or contractor of the Bureau of Prisons, or
`any other individual who had custody or control over the
`defendant.
`For purposes of this provision, the misconduct must be
`established by a conviction in a criminal case, a finding or
`admission of liability in a civil case, or a finding in an
`administrative proceeding, unless such proceedings are unduly
`delayed or the defendant is in imminent danger.
`(5) Other Reasons.--The defendant presents any other circumstance or
`combination of circumstances that, when considered by themselves or
`together with any of the reasons described in paragraphs (1) through
`(4), are similar in gravity to those described in paragraphs (1) through
`(4).
`(6) Unusually Long Sentence.--If a defendant received an unusually
`long sentence and has served at least 10 years of the term of
`imprisonment, a change in the law (other than an amendment to the
`Guidelines Manual that has not been made retroactive) may be
`considered
`in determining whether
`the defendant presents an
`extraordinary and compelling reason, but only where such change
`would produce a gross disparity between the sentence being served and
`the sentence likely to be imposed at the time the motion is filed, and
`after full consideration of the defendant's individualized circumstances.
`The Ninth Circuit has held that that because “the [former] version of U.S.S.G. § 1B1.13 is
`not an ‘applicable policy statement[]’ for 18 U.S.C. § 3582(c)(1)(A) motions filed by a
`defendant,” “[t]he Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform
`a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are
`not binding.” Aruda, 993 F.3d at 802; accord United States v. Roper, 72 F.4th 1097, 1101
`(9th Cir. 2023); see also United States v. Wooten, No. 21-50126, 2021 WL 6116632, at *1
`(9th Cir. Dec. 27, 2021) (“U.S.S.G. § 1B1.13 ‘remains helpful guidance even when motions
`are filed by defendants’” (quoting United States v. McCoy, 981 F.3d 271, 282 n.7 (4th Cir.
`2020))). However, U.S.S.G. § 1B1.13 was amended on November 1, 2023 to reflect that
`a defendant is authorized to file a motion under 18 U.S.C. § 3582(a)(1)(A), meaning that
`the policy statement is now applicable to both defendant-filed and BOP-filed motions. See
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`U.S.S.G. § 1B1.13(a) (“Upon motion of the Director of the Bureau of Prisons or the
`defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), . . . .”); see also Roper, 72 F.4th at 1101
`n.2 (noting that the new amendments “address[] defendant-filed motions”). (See also Doc.
`No. 1774 at 5-7.)
`
`In his October 6, 2023 motion for compassionate release, Defendant argues that that
`an “extraordinary and compelling reasons” is present in his case because there is a dramatic
`sentencing disparity between the sentence he received in this case and the sentence he
`would have received under the current law. (Doc. No. 1768.) Specifically, Defendant
`argues that under the Ninth Circuit’s recent decision in United States v. Castillo, 69 F.4th
`648 (9th Cir. 2023), he would not qualify as a “career offender” had he been sentenced
`today, meaning that he would have received a much lower sentence than the Court
`imposed. (Doc. No. 1768 at 3-4, 12-21.)
`Under U.S.S.G. § 1B1.13(b)(6), “a change in the law” can constitute an
` U.S.S.G. §
`in certain circumstances.2
`“extraordinary and compelling” reason
`1B1.13(b)(6). But Defendant’s compelling and extraordinary reason argument and
`reliance on Castillo in this case fails because if the Court were to sentence Defendant today,
`his resulting sentence would remain the exact same.
`At the sentencing hearing in this case, the Court calculated Defendant’s guideline
`range by starting with a base offense level of 32; adjusting the offense level up to 37 based
`on a “career offender” enhancement under U.S.S.G. § 4B1.1(b)(1); and subtracting three
`points for acceptance of responsibility under U.S.S.G. § 3E1.1(b), resulting in a total
`offense level of 34 and an advisory guideline range of 262 to 327 months. (Doc. No. 1266
`
`
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`The Government argues that subsection (b)(6) is “contrary to the [18 U.S.C. §
`2
`3582(c)]’s text, structure, and purpose, and therefore is invalid.” (Doc. No. 1774 at 7-8,
`11-21.) Because the Court denies Defendant’s motion for compassionate release based on
`the reasons stated below, the Court declines to address the Government’s argument that
`U.S.S.G. § 1B1.13(b)(6) is invalid.
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`at 21-22.) The Court then sentenced Defendant to 262 months in custody, the low end of
`the guideline range. (Id. at 22.)
`
`The above calculations and the resulting sentence would remain the exact same even
`if Defendant were sentenced today because he would still be a “career offender” with a
`resulting adjusted offense level of 37 under the current sentencing guidelines. U.S.S.G. §
`4B1.1 sets forth the “career offender” enhancement and provides:
`(a) A defendant is a career offender if (1) the defendant was at least eighteen
`years old at the time the defendant committed the instant offense of
`conviction; (2) the instant offense of conviction is a felony that is either a
`crime of violence or a controlled substance offense; and (3) the defendant has
`at least two prior felony convictions of either a crime of violence or a
`controlled substance offense.
`U.S.S.G. § 4B1.1(a). At sentencing, the Court relied on Defendant’s 1999 conviction for
`possession for sale of a controlled substance in violation of California Health and Safety
`Code § 11378 and Defendant’s 2002 conviction for offer to manufacture a controlled
`substance in violation of California Health and Safety Code § 11379(b) as the two
`underlying predicate “controlled substance offense[s]” for Defendant’s “career offender”
`enhancement. (See Doc. No. 1266 at 22-23; Doc. No. 906, PSR ¶¶ 56, 59; see also Doc.
`No. 1450 at 6-7.)
`Defendant argues that, following the Ninth Circuit’s recent decision in Castillo, his
`
`2002 conviction for offering to manufacture methamphetamine is no longer a qualifying
`predicate offense for a “career offender” enhancement under § 4B1.1(b)(1). (See Doc. No.
`1768 at 3-4, 12-21.) But the Ninth Circuit’s holding in Castillo is of no aid to Defendant.
`
`The former version of § 4B1.2 defined the term “controlled substance offense” as
`“‘[A]n offense under federal or state law, punishable by imprisonment for a term exceeding
`one year, that prohibits the manufacture, import, export, distribution, or dispensing of a
`controlled substance (or a counterfeit substance) or the possession of a controlled substance
`(or a counterfeit substance) with intent to manufacture, import, export, distribute, or
`dispense.’” Castillo, 69 F.4th at 652 (quoting U.S.S.G. § 4B1.2 (2021)). Application Note
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`1 to the former version of U.S.S.G. § 4B1.2(b) provided “that ‘controlled substance
`offenses’ ‘include the offenses of aiding and abetting, conspiring, and attempting to
`commit such offenses.’” Id. (quoting U.S.S.G. § 4B1.2 (2021)).
`In Castillo, the Ninth Circuit held that Application Note 1 to the former version of §
`4B1.2 “improperly expands the definition of ‘controlled substance offense’ in U.S.S.G. §
`4B1.2(b).” 69 F.4th at 651. As such, courts may not defer to Application Note 1 in
`determining whether a crime fits into § 4B1.2(b)’s definition of “controlled substance
`offense.” See id. at 662–63 (“Because we find that § 4B1.2(b)’s definition of “controlled
`substance offense” is unambiguous, the Supreme Court’s decision in Kisor now makes it
`impermissible to defer to Application Note 1 to determine whether conspiracy fits into this
`definition. (citing Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019))).
`
`But Castillo’s holding is of no consequence here because § 4B1.2 was amended on
`November 1, 2023. The current version of § 4B1.2 deleted Application Note 1 and moved
`the relevant provision to the text of § 4B1.2(d), meaning that Castillo’s holding regarding
`Application Note 1 is no longer applicable. See United States v. Portillo, No. 2:07-CR-
`00165-TLN, 2023 WL 5955999, at *2 (E.D. Cal. Sept. 13, 2023) (explaining that Castillo’s
`holding is not applicable to the amended version of § 4B1.2 set to be enacted on November
`1, 2023). The current version of § 4B1.2 defines a “controlled substance offense” as:
`an offense under federal or state law, punishable by imprisonment for a term
`exceeding one year, that--
`(1) prohibits
`the manufacture, import, export, distribution, or
`dispensing of a controlled substance (or a counterfeit substance) or the
`possession of a controlled substance (or a counterfeit substance) with
`intent to manufacture, import, export, distribute, or dispense; or
`(2) is an offense described in 46 U.S.C. § 70503(a) or § 70506(b).
`U.S.S.G. § 4B1.2(b). The current version of § 4B1.2(d) further states: “Inchoate Offenses
`Included.--The terms ‘crime of violence’ and ‘controlled substance offense’ include the
`offenses of aiding and abetting, attempting to commit, or conspiring to commit any such
`offense.” U.S.S.G. § 4B1.2(d).
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`In light of this language in § 4B1.2(d), the Ninth Circuit has held in many cases that
`the definition of “controlled substance offense” in § 4B1.2 includes “offers” to engage in
`the prohibited conduct. See, e.g., United States v. House, 31 F.4th 745, 753–54 (9th Cir.
`2022) (holding that prior conviction for violation of “Montana’s accountability statute[,
`which] include offers to engage in prohibited conduct” is a qualifying “controlled
`substance offense” under § 4B1.2); United States v. Crum, 934 F.3d 963, 967 (9th Cir.
`2019) (holding that prior conviction for “offering to sell a controlled substance” is a
`qualifying “controlled substance offense” under § 4B1.2); United States v. Lee, 704 F.3d
`785, 790 n.2 (9th Cir. 2012) (same); United States v. Sorenson, 818 F. App’x 668, 669 (9th
`Cir. 2020) (same); see also United States v. Shumate, 329 F.3d 1026, 1031-32 (9th Cir.
`2003) (holding that “solicitation is within the Guidelines’ definition of a controlled
`substance offense for purposes of § 4B1.1”). As such, Defendant’s 2002 conviction for
`offering to manufacture methamphetamine still qualifies as a “controlled substance
`offense” under § 4B1.2, meaning that Defendant would still qualify for a “career offender”
`enhancement under § 4B1.1(b)(1) even if he were sentenced today. See id. (See Doc. No.
`1450 at 7 n.6.)
`In sum, even if the Court were to sentence Defendant under the current law and
`
`following the Ninth Circuit’s decision in Castillo, Defendant would still qualify for a
`“career offender” enhancement under § 4B1.1(b)(1) resulting in an adjusted offense level
`of 37, and the Court would still make the same sentencing calculations that it did in
`determining his sentence. Accordingly, Defendant has failed to demonstrate that the Ninth
`Circuit’s d