United States District Court, D. Alaska
H. RUSSEL HOLLAND, District Judge.
Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241
Mario Artola petitions the court for an order correcting and reducing his sentence. This petition is opposed. Oral argument was not requested and is not deemed necessary.
In 1994, a jury found Artola guilty of conspiracy to distribute cocaine. Under the mandatory Sentencing Guidelines then in effect, Artola's base offense level was 34, to which 8 levels of enhancement were added, bringing Artola's total offense level to 42. Artola had five criminal history points, which resulted in a criminal history category of III. Artola received one point for a 1991 conviction for driving without a valid license. Artola received two points for a 1994 conviction for reckless endangerment,  which was also a driving offense. And, Artola received two points because he was on probation for the 1991 driving without a license conviction at the time he committed the federal drug offense for which he was being sentenced.
At sentencing, Artola's counsel made no argument that Artola's criminal history score was over-represented. However, the sentencing judge expressed concern that Artola's two prior convictions involved "traffic matters." Specifically, the sentencing judge stated that "getting into criminal history category three on the basis of these is of some concern to me." But the sentencing judge observed that "even if I were to move Mr. Artola two levels down to a level one, to reflect the possibility that his driving convictions exaggerate the seriousness of his past criminal history, the sentencing range would be identical." The sentencing judge explained that "if it would make a difference, I might just go ahead and do it sua sponte, but I'm not. Secondly, ... before I did do it sua sponte, I would want to know more information about the wild chase that led to the reckless endangerment."
Based on an offense level of 42 and a criminal history category of III, Artola's guideline range was 360 months to life. The sentencing court imposed the minimum sentence of 360 months.
Artola appealed his conviction and sentence. On appeal, Artola argued ineffective assistance of counsel. United States v. Artola, Case No. 95-30029, 1997 WL 85175, at *1 (9th Cir. Feb. 26, 1997). One of the ineffective assistance arguments that Artola raised concerned an error in addition in the presentence investigation report (PSR). In the original PSR, Artola's total offense level was listed as 42. But, when the enhancements in the report were totaled, they only added up to 40. "The reason for this discrepancy was that although the probation officer contemplated assigning Artola a four-point enhancement for being the organizer or leader of a criminal activity involving five or more participants, the officer erred in only assigning Artola a two-point enhancement." United States v. Artola, Case No. 99-35423, 2000 WL 158514, at *1, n.2 (9th Cir. Feb. 9, 2000). "When the correct four-point enhancement was recorded in the Supplemental PSR, Artola's total offense level properly totaled 42." Id . The Ninth Circuit rejected this ineffective assistance argument because "counsel's failure to notice the addition error in the presentence report could not have prejudiced Artola, since the sentencing range at offense level 40 is the same as that at offense level 42." Artola, 1997 WL 85175, at *1. After rejecting two other arguments raised by Artola, the Ninth Circuit affirmed Artola's conviction and sentence. Id. at *2.
Artola then petitioned for post-conviction relief, arguing ineffective assistance of counsel prior to trial, at trial, at sentencing, and on appeal. This court denied Artola's § 2255 motion. On appeal, the Ninth Circuit affirmed the denial. Artola, 2000 WL 158514, at *1. The Ninth Circuit rejected Artola's argument that his counsel provided ineffective assistance because he failed "to object that Artola's criminal history was over-repre-sented[, ]" observing that "[a]t sentencing, the district court specifically considered reducing Artola's Criminal History Category, but declined to do so because one of his convictions was for a wild car chase that led to reckless endangerment, ' in which shots were fired and three firearms were found in Artola's car." Id. at *2. The Ninth Circuit also rejected Artola's argument that "the PSR erroneously indicated that he had committed one of his prior crimes while he was on probation." Id . The court concluded that even if this had been an error, "it would have only dropped Artola from Criminal History Category III to II. Because the sentencing range is the same for both categories at Artola's offense level, level 42, there was no prejudice." Id.
On November 1, 2007, United States Sentencing Commission Amendment 709 went into effect. Amendment 709 addressed how certain misdemeanor and petty offenses were calculated when determining a defendant's criminal history score. More specifically, for purposes of this case, Amendment 709 changed the counting criteria for probation from one year to "more than" one year. Amendment 709 was not given retroactive effect by the Sentencing Commission.
Had Amendment 709 been in effect when Artola's criminal history was calculated, the 1991 driving without a license conviction would not have counted and he would have potentially only had two criminal history points, rather than five. But as Artola acknowledges, at the time Amendment 709 was issued, it had no impact on his minimum guideline sentence because even if his criminal history category were lowered, his sentence remained the same as long as his offense level was 42.
"On November 1, 2014, the [Sentencing] Commission issued Amendment 782 to its Sentencing Guidelines, which lowered the recommended sentences for certain drug crimes[.]" United States v. Navarro, 800 F.3d 1104, 1107 (9th Cir. 2015). "At the same time, the Commission promulgated another amendment, Amendment 788, which amended § 1B1.10 of the Guidelines to authorize district courts to apply Amendment 782 retroactively to reduce the length of certain already-imposed sentences, provided that the effective date of the court's order is November 1, 2015, or later.'" Id . (quoting USSG, supp. app'x. C, amend. 788 (2014)).
On December 15, 2014, Artola filed a motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduction in sentence pursuant to Amendment 782. Artola filed an amended motion on March 16, 2015.
On April 1, 2015, the court denied Artola's motion to reduce his sentence. The court explained that "[g]iving effect to Amendment 782 in this case would reduce defendant's offense level from 42 to 40" but that with a criminal history category III, "the range for sentencing defendant... would still be 360 months to life." "In other words, defendant is not entitled to any sentence reduction... so long as his criminal history category is III." And as to that issue, the court stated that it "has no ...