United States District Court, D. Arizona
K. Jorgenson District Judge.
before the Court is the Motion for (1) Appointment of Counsel
Under (CJA) for the Purpose of: (2) Modification of Term of
Imprisonment Pursuant to Retroactivity of the Amend[m]ent 782
of the U.S.S.G. (The Minus-2 Amendment) (Doc. 55) filed by
Jorge Alberto De La Garza-Gonzalez (“De La
April 28, 2010, De La Garza-Gonzalez was indicted for
Possession with Intent to Distribute Methamphetamine and
Importation of Methamphetamine. On March 7, 2011, De La
Garza-Gonzalez pleaded guilty to the Indictment.
pre-sentence report (“PSR”) calculated a
sentencing range pursuant to the United States Sentencing
Guidelines, including a base offense level of 38 based on the
purity of methamphetame, a criminal history category I, a
two-level reduction for safety valve, a two-level increase
for the importation of methamphetamine, and a two-level
reduction for acceptance of responsibility, for a total
offense level of 36, resulting in a 188 to 235 month range of
incarceration. The PSR recommended a 78 month term of
matter proceeded to sentencing on September 22, 2011, before
Visiting District Judge Timothy M. Burgess. The Court adopted
the facts as set forth in the PSR. The Court rejected a minor
role reduction, but in his discretion sentenced De La
Garza-Gonzalez outside of the guideline range to a 78 month
term of incarceration on each count, with the sentences to
October 13, 2016, De La Garza-Gonzalez filed his Motion for
(1) Appointment of Counsel Under (CJA) for the Purpose of:
(2) Modification of Term of Imprisonment Pursuant to
Retroactivity of the Amend[m]ent 782 of the U.S.S.G. (The
Minus-2 Amendment) (Doc. 55). On October 13, 2016, the
Federal Public Defender filed a Notice Relating to
Defendant's Pro Se Request for a Sentence Reduction Under
18 U.S.C. § 3582(c)(2) (Doc. 56).
review of De La Garza-Gonzalez's status on the BOP inmate
locator indicates De La Garza-Gonzalez was released from the
custody of the federal Bureau of Prisons (“BOP”)
on August 14, 2013. De La Garza-Gonzalez's Motion
indicates he was “transferred to a Mexican jail under
the Treaty Transfer between Mexico and the United States,
specifically to the Federal Penitentiary Complex at Maria
Madre Island in the State of Nayarit, Mexico.” Motion
(Doc. 55), p. 2.
for Review of De La Garza-Gonzalez' Request
§ 1B1.10(b)(2)(C) provides: “Prohibition - In no
event may the reduced term of imprisonment be less than the
term of imprisonment the defendant has already served.”
However, the United States-Mexico Treaty provides:
The Transferring State shall have exclusive jurisdiction over
any proceedings, regardless of their form, intended to
challenge, modify or set aside sentences handed down by its
courts. The Receiving State shall, upon being advised by the
Transferring State of action affecting the sentence, take the
appropriate action in accordance with such advice.
States-Mexico Prisoner Transfer Treaty Signed at Mexico Nov.
25, 1976;, T.I.A.S. No. 8718 (Nov. 30, 1977).
it is not clear if De La Garza-Gonzalez remains in custody.
His motion, Dated: July 4, 2015, states he has ten months of
his sentence to serve based on good time credits. Motion
(Doc. 55), p. 2. In other words, it is likely De La
Garza-Gonzalez has already been released. Because De La
Garza-Gonzalez is only contesting the length of his
incarceration and not any term of supervised release, his
claim is moot if he has been released. See United States
v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999) (citing
USSC for principle that a defendant's possible increased
sentence is not sufficient for standing); Telfer v.
Waddington, 255 F.App'x 188 (9th Cir. 2007) (where
petition challenged only a sentence and not the conviction,
matter was moot). However, because the Court cannot confirm
his status, the Court finds it has jurisdiction to review De
La Garza-Gonzalez's request.