Sentencing Guidelines – Resentencing

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7^th Circuit Court of Appeals

Case Name: United States of America v. Fernando Godinez

Case No.: 19-1215

Officials: FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

Focus: Sentencing Guidelines – Resentencing

Fernando Godinez pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The Government filed an information under 21 U.S.C. § 851, advising the district court that Mr. Godinez had a prior Ohio conviction for possession of cocaine. The district court determined that this prior state conviction made Mr. Godinez eligible for a mandatory minimum sentence of ten years’ imprisonment rather than the otherwise applicable five-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(B) (2010).

841(b)(1)(B) (2010). Mr. Godinez now submits that, at the time of sentencing, the district court—and both parties—misapprehended the legal consequences of the Government’s filing the § 851 information. Specifically, he submits that the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (the “First Step Act”), enacted after the signing of Mr. Godinez’s plea agreement but before his sentencing, rendered invalid both the information and the increased penalties it carried. In his view, the district court should not have characterized his previous Ohio conviction as a conviction for “possession with intent to distribute” cocaine, the qualifying requirement for the ten-year mandatory minimum. Therefore, Mr. Godinez submits, he is not subject to the higher mandatory minimum.

Mr. Godinez is correct. By failing to recognize the changes implemented by the First Step Act, the district court premised its sentencing calculations on a mandatory minimum that was twice what it should have been. This oversight constitutes plain error and requires that Mr. Godinez be resentenced. Accordingly, we vacate the judgment of the district court and remand the case to the district court for sentencing.

Vacated and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.