Opinion
CASE NO. 14cr3008-LAB
10-27-2016
UNITED STATES OF AMERICA, Plaintiff, v. RAPHAEL VILLASENOR, Defendant.
ORDER DENYING RULE 35(b) MOTION
On October 5, 2015, this Court sentenced Raphael Villasenor for participating in a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and 846. This wasn't Villasenor's first felony drug conviction or felony sentencing - he had pled guilty in 2010 to transporting more than 16 pounds of marijuana. Nonetheless, at Villasenor's sentencing - despite stating its reservations - the Court granted the government's motion to depart 6 levels from the presumptive Sentencing Guideline ("USSG") range because the prosecutor proferred that the defendant had provided substantial assistance to the government. See USSG, § 5K1.1. The departure reduced Villasenor's custodial exposure by about half; instead of an advisory sentencing range of 151-188 months, Villasenor's faced only 78-97 months. The Court imposed a 90 month sentence.
Transcript of Sentencing (October 5, 2015), p. 17 --------
The government has now filed a motion under Fed.R.Crim.P. 35(b) asking for a further reduction of Villasenor's sentence. The motion is supported by a declaration from a prosecutor that outlines in the most general terms the basis for the request. The declaration is not specific insofar as when the defendant provided additional assistance or the nature of any such assistance. It doesn't, in particular, attempt to differentiate between assistance the defendant provided before he was sentenced and assistance he may have provided afterward. See, e.g., p. 2, line 7 of Sealed Declaration in Support of Government's Rule 35(b) Motion).
Before the Court will consider granting a further reduction of the defendant's sentence for assisting the government, the government must establish that Villasenor hasn't already been credited for the same assistance. This analysis is to be performed "against the backdrop of a defendant's original sentence." United States v. Tadio, 663 F.3d 1042, 1053 (9th Cir. 2011). The Ninth Circuit has cautioned courts against overvaluing a defendant's cooperation. See United States v. Ressam, 679 F.3d 1069, 1091-92 (9th Cir. 2012) (en banc). In Ressam, the court reversed, in part, because it determined that the district court had given excessive weight to the defendant's cooperation and, on that basis, imposed a sentence that was too low. Id. Here, because the Court already reduced Villasenor's sentence for assisting the government, there is a similar risk that granting a further reduction will overvalue that assistance. Tadio, 663 F.3d at 1048 (court's role in the Rule 35 process is to decide whether to accept the Government's recommendation and, if so, the magnitude of departure as a function of the degree and nature of the cooperation).
The government's Rule 35(b) motion is DENIED without prejudice. If the government chooses to refile the motion, it must set forth with particularity the nature and extent of Villasenor's assistance since the date he was sentenced. Any renewed motion shall include as an attachment the prosecutor's declaration filed in support of the government's original motion for a departure under USSG, § 5K1.1.
IT IS SO ORDERED. DATED: October 27, 2016
/s/_________
HONORABLE LARRY ALAN BURNS
United States District Judge