Filed: Oct. 16, 2012
Latest Update: Mar. 26, 2017
Summary: guideline ranges for crack cocaine offenses accordingly;the sentencing court's sound discretion.sentence also passed upon the sentence reduction motion.4, It is common ground that, in drug cases, sentencing ranges, under the advisory guidelines are influenced to a great extent by, drug quantity.
United States Court of Appeals
For the First Circuit
No. 12-1180
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE APONTE-GUZMÁN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpi, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Héctor E. Gúzman, Jr., Federal Public Defender, and Héctor L.
Ramos-Vega, Assistant Federal Public Defender, Supervisor, Appeals
Section, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Luke Cass, Assistant United States Attorney, on brief
for appellee.
October 16, 2012
SELYA, Circuit Judge. In response to a national hue and
cry about the disparity between sentences for powder cocaine
offenses and crack cocaine offenses,1 the Sentencing Commission
lowered the advisory guideline ranges for certain of the latter
offenses. See USSG App. C, Amends. 748, 750. The Commission made
it clear that the new guideline ranges applied retroactively. See
USSG App. C, Amend. 759. Amendments 750 and 759 (hereinafter, "the
new guideline amendments") went into effect on November 1, 2011.
In fashioning this relaxed regime, the Sentencing
Commission took pains to safeguard the district courts' discretion
with respect to reduction of sentences previously imposed:
sentencing courts were empowered, not compelled, to make
retroactive sentence adjustments case by case. This appeal tests
the limits of this preserved discretion. After careful
consideration, we affirm the district court's refusal to disturb
the appellant's sentence. The tale follows.
On June 11, 2009, a federal grand jury sitting in the
District of Puerto Rico indicted fifty-eight defendants. The
indictment alleged that the defendants had participated in a
massive drug-trafficking enterprise. Defendant-appellant Jorge
Aponte-Guzmán was named in six substantive counts.
1
Throughout this opinion, we use the term "crack cocaine" as
a shorthand for the more technical description of the same
substance ("cocaine base").
-2-
The appellant initially maintained his innocence. On
April 21, 2010, however, he changed his plea and entered a guilty
plea on two counts: conspiracy to possess with intent to distribute
various controlled substances (including crack cocaine), and
conspiracy to possess firearms in furtherance of a drug-trafficking
crime. See 21 U.S.C. §§ 841(a)(1), 846, 860; 18 U.S.C. §
924(c)(1). In a written plea agreement, the parties stipulated
that the appellant would be held responsible for at least 150, but
less than 500, grams of crack cocaine. The district court accepted
the change of plea. The appellant's adjusted offense level was 32
and the court placed him in criminal history category I. These
calculations yielded a guideline sentencing range ("GSR") of 135-
168 months. On July 27, 2010, the court sentenced the appellant to
a 150-month incarcerative term (as jointly recommended by the
parties). The court then dismissed the other charges originally
brought against the appellant.
On August 3, 2010, Congress enacted the Fair Sentencing
Act of 2010 (FSA), now codified at 21 U.S.C. §§ 841, 960.
Pertinently, the FSA gave the Sentencing Commission emergency
authority to lower the guideline penalties for crack cocaine
offenses. See United States v. Curet, 670 F.3d 296, 309 (1st Cir.
2012). As part of its response, the Commission promulgated the new
guideline amendments, which collectively implemented the FSA's
emergency authorization; modified the Drug Quantity Table, USSG
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§2D1.1(c), to increase the amounts of crack cocaine required to
trigger certain sequential base offense levels; lowered the
guideline ranges for crack cocaine offenses accordingly; ensured
that the lowered guideline ranges would for the most part be
available for retroactive application; and made other facilitative
changes not relevant here.
In anticipation of the November 1, 2011 effective date,
the appellant filed a motion for a sentence reduction under 18
U.S.C. § 3582(c)(2).2 The district court ordered supplemental
briefing and sought a recommendation from the probation office.
After considering these materials, the court, in a succinct docket
order entered on December 27, 2011, denied the motion.
Despite its brevity, the docket order illuminated the
court's rationale. According to the order, the court declined to
reduce the sentence "in the exercise of its discretion." The
appellant, it explained, was not a garden-variety narcotics
2
This statute provides:
[I]n the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o), upon motion of the
defendant or the Director of the Bureau of Prisons, or on
its own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable,
if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
-4-
offender but, rather, "was a drug point owner" who had "entered
into an extremely beneficial and narrowly tailored plea agreement
in which he stipulated [to] a very reduced crack amount." To make
matters worse, he had been "involved with firearms." This timely
appeal ensued.
This court reviews a district court's denial of a section
3582(c)(2) motion for abuse of discretion. See United States v.
Caraballo, 552 F.3d 6, 8 (1st Cir. 2008); United States v.
Rodríguez-Peña,
470 F.3d 431, 432 (1st Cir. 2006) (per curiam).
Leaving to one side claims of procedural error — no such claim is
asserted here — such review, in the sentencing context, is
tantamount to review for reasonableness. See, e.g., Gall v. United
States,
552 U.S. 38, 51 (2007); United States v. Martin,
520 F.3d
87, 92 (1st Cir. 2008).
The appellant's attack on the district court's order
starts with a suggestion that the order is ambiguous and can be
interpreted as finding him ineligible for a sentence modification.
The ambiguity, he says, derives from the cut-off point contained in
the new guideline amendments: under those amendments, defendants
who have been convicted of trafficking in more than 450 grams of
crack cocaine are effectively ineligible for retroactive sentence
adjustments. In the appellant's view, this ambiguity may have led
to the denial of his motion. After all, his plea agreement
stipulated that he should be held responsible for between 150 and
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500 grams of crack cocaine; and the sentencing court may have
thought that because the upper end of this range exceeded the cut-
off point, the appellant was ineligible per se for a sentence
reduction. Building on this speculative foundation, the appellant
asseverates that the uncertainty about whether a defendant who
pleads guilty to a drug-quantity spread that traverses several base
offense levels (some of which lie above the ceiling for eligibility
contemplated by the new guideline amendments), rather than to a
precise drug quantity is eligible for a sentence reduction under
the new guideline amendments demands the application of the rule of
lenity. We think not.
We do not gainsay that "[i]n a criminal case, the rule of
lenity requires a court to resolve true statutory uncertainty in
the accused's favor." United States v. Ahlers, 305 F.3d 54, 62
(1st Cir. 2002). But even though this rule is ingrained in the
criminal law, it has no pertinence here for at least two reasons.
First, the case law makes pellucid that the rule of
lenity, which has a laser-like statutory focus, does not apply to
drug-weight calculations under the sentencing guidelines. See,
e.g., United States v. Gonzalez, 407 F.3d 118, 124 (2d Cir. 2005);
United States v. McEntire,
153 F.3d 424, 438 n.16 (7th Cir. 1998).
Such calculations do not present questions of statutory ambiguity
and, therefore, do not raise concerns that may be redressed through
an application of the rule of lenity.
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Second — and equally as dispositive — the question of
how to create an interface between the new guideline amendments and
a drug-quantity spread that encompasses amounts both above and
below the cut-off point is not implicated here. In denying the
appellant's sentence reduction motion, the district court stated in
no uncertain terms that it was exercising its discretion. This
explicit statement shows beyond hope of contradiction that the
court, as a threshold matter, treated the appellant as a person
eligible for, but not deserving of, a sentence reduction.
The appellant's fallback argument is that, given his
eligibility for a sentence reduction and the possible applicability
of a lowered sentencing range,3 the district court abused its
discretion in refusing to diminish his sentence. This argument
lacks force.
Section 3582(c)(2) itself states that, in a case in which
a modified sentence may be proper, "the court may reduce the term
of imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the
3
The Drug Quantity Table, USSG §2D1.1(c), as amended by the
new guideline amendments, no longer contains a single GSR for drug-
trafficking offenses involving between 150 and 500 grams of crack
cocaine. Depending on how one parses the parties' drug-quantity
stipulation, the defendant's GSR under the new guideline amendments
could have been as low as 87-108 months or as high as 135-168
months (the same GSR that obtained when the appellant's sentencing
took place).
-7-
Sentencing Commission." 18 U.S.C. § 3582(c)(2) (emphasis
supplied). By using the precatory term "may," rather than the
directory term "shall," Congress indicated its intent to make
section 3582(c)(2) sentence reductions discretionary, not a matter
of right. See United States v. Rodgers, 461 U.S. 677, 706 (1983)
(explaining that "[t]he word 'may,' when used in a statute, usually
implies some degree of discretion"). Consistent with this indicium
of Congressional intent, the case law makes manifest that the grant
or denial of a section 3582(c)(2) motion is a matter committed to
the sentencing court's sound discretion. See, e.g., Rodríguez-
Peña, 470 F.3d at 432. Section 3582(c)(2) "instructs a court to
consider any applicable § 3553(a) factors and determine whether, in
its discretion, the reduction . . . is warranted in whole or in
part under the particular circumstances of the case." Dillon v.
United States,
130 S. Ct. 2683, 2692 (2010).
There is nothing in the text of the new guideline
amendments that diminishes this discretion. In promulgating those
amendments, the Sentencing Commission empowered district courts to
reduce some crack cocaine sentences previously imposed; it did not
direct the district courts to make such reductions, come what may.
In the case at hand, the district court — though it
admittedly took a hard line — acted within the encincture of its
discretion. The judge who imposed the appellant's original
sentence also passed upon the sentence reduction motion. Giving
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due weight to his superior coign of vantage and his hands-on
familiarity with the case, we must approach his refusal to shrink
the sentence with a considerable measure of respect.
To be sure, deferential review is never to be confused
with blind allegiance to the decision of the lower court. Here,
however, the district court's order, though terse, contained
adequate reasons for its action. The court specifically referenced
the appellant's role as "a drug point owner," a drug trafficker
"involved with firearms," and a co-conspirator who had "entered
into an extremely beneficial . . . plea agreement" and had received
the benefit, via the government's stipulation, of "a very reduced
crack amount."4
There is one last data point. If the district court
deemed the appellant to have been responsible for 280 or more grams
of crack cocaine — a decision that would have fit comfortably with
the drug-quantity stipulation contained in the plea agreement — the
appellant's GSR would not have changed at all. In other words, the
GSR would have remained at 135-168 months. This parity would, of
course, argue powerfully against the need for a sentence reduction.
4
It is common ground that, in drug cases, sentencing ranges
under the advisory guidelines are influenced to a great extent by
drug quantity. See, e.g., United States v. Platte, 577 F.3d 387,
392 (1st Cir. 2009); United States v. Collado,
975 F.2d 985, 995
(3d Cir. 1992). Consequently, the government's stipulation to what
the district court described as "a very reduced crack amount" may
well have resulted in an artificial lowering of the appellant's
original sentence.
-9-
We need go no further. The catalogued factors plainly
indicate that the court gave individualized consideration to the
appellant's situation and had specific — and not unreasonable —
grounds for denying a sentence reduction. The doubt about whether
the new guideline amendments actually affected the appellant's GSR
buttresses the court's conclusion. In these circumstances, there
was no abuse of discretion.
Affirmed.
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