Filed: Jan. 23, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 19-11691 Date Filed: 01/23/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11691 Non-Argument Calendar _ D.C. Docket No. 9:08-cr-80004-DMM-7 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PABLO RIVAS, a.k.a. Black, a.k.a. T-Lo, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (January 23, 2020) Before JORDAN, NEWSOM and HULL, Circuit Judges. PER CURIAM: Case: 19-116
Summary: Case: 19-11691 Date Filed: 01/23/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11691 Non-Argument Calendar _ D.C. Docket No. 9:08-cr-80004-DMM-7 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PABLO RIVAS, a.k.a. Black, a.k.a. T-Lo, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (January 23, 2020) Before JORDAN, NEWSOM and HULL, Circuit Judges. PER CURIAM: Case: 19-1169..
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Case: 19-11691 Date Filed: 01/23/2020 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11691
Non-Argument Calendar
________________________
D.C. Docket No. 9:08-cr-80004-DMM-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO RIVAS,
a.k.a. Black,
a.k.a. T-Lo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 23, 2020)
Before JORDAN, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
Case: 19-11691 Date Filed: 01/23/2020 Page: 2 of 10
Pablo Rivas, a federal prisoner proceeding pro se, appeals the district court’s
denial of his motion to reduce his 210-month prison sentence based on the First
Step Act of 2018. After review, we affirm.
I. BACKGROUND FACTS
A. Guilty Plea and Conviction
In February 2008, a grand jury indicted Rivas on one count of conspiracy to
distribute controlled substances, namely 50 grams or more of a mixture or
substance containing a detectable amount of “crack” cocaine and 500 grams or
more of a mixture or substance containing a detectable amount of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), and three counts of
possession with intent to distribute crack cocaine, in violation of § 841(a)(1) and
18 U.S.C. § 2 (Counts 3-5).
Pursuant to 21 U.S.C. § 851, the government filed an information notifying
Rivas that based on his 1997 Florida felony conviction for the sale of cocaine, he
was subject to an increased punishment under § 841(b)(1)(A) and (B). Given the
statutory § 851 notice, Rivas faced a statutory mandatory minimum of twenty years
and a statutory maximum of life for his drug crimes. See 21 U.S.C.
§ 841(b)(1)(A)(iii) (2008).
In May 2008, Rivas pled guilty, pursuant to a plea agreement, to the drug
distribution conspiracy in Count 1 in exchange for the dismissal of the remaining
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counts. Rivas agreed to a factual proffer that stated that Rivas distributed crack
cocaine and cocaine as part of an extensive illegal drug trafficking organization,
and he used his codefendants as drug couriers. The parties agreed that the quantity
of crack cocaine attributable to Rivas in the drug conspiracy was at least 50 grams
but less than 150 grams. The government also agreed that it would rely only on
Rivas’s 1997 Florida sale of cocaine conviction in seeking enhanced penalties
under §§ 841(b) and 851.1
B. Original Sentencing and Rule 35(b) Reduction
At the September 2008 sentencing, the district court accepted the drug
quantities agreed to in the plea agreement. The district court concluded, however,
that the drug quantities did not matter because, given that Rivas was a career
offender, he still had a total adjusted offense level of 34 under the career offender
guideline and a criminal history category of VI, which resulted in an advisory
guidelines range of 262 to 327 months’ imprisonment.2 The district court also
determined, and Rivas agreed, that Rivas faced a statutory mandatory minimum
1
Rivas had a second felony drug conviction that, if included in the § 851 information,
would have subjected him to a statutory mandatory life sentence at his 2008 sentencing. See 21
U.S.C. § 841(b)(1)(A)(iii) (2008).
2
Under U.S.S.G. § 4B1.1(b), a career offender whose offense statutory maximum is life
automatically receives an offense level of 37. See U.S.S.G. § 4B1.1(b)(A) (2008). Rivas
received a three-level reduction for acceptance of responsibility, resulting in a total offense level
of 34.
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20-year (240-month) sentence under § 841(b)(1)(A). Rivas and the government
asked for the mandatory minimum 240-month sentence.
The district court agreed and varied downward to impose a 240-month
prison term, followed by ten years’ supervised release. Consistent with the appeal
waiver in his plea agreement, Rivas did not file a direct appeal.
In 2009, the district court granted the government’s motion under Rule 35(b)
of the Federal Rules of Criminal Procedure and reduced Rivas’s sentence to 210
months in light of his substantial assistance to the government.
C. Motion for Sentence Reduction Based on the First Step Act
In December 2018, Congress passed the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194. Shortly thereafter, Rivas filed a pro se motion for a
reduction of his sentence based on § 404 of the First Step Act.
Section 404 of the First Step Act authorizes, but does not require, the district
courts to impose reduced sentences for defendants convicted of certain crack
cocaine offenses “as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . .
were in effect at the time the covered offense was committed.” First Step Act
§ 404(a)-(c), 132 Stat. at 5222.3 In turn, sections 2 and 3 of the Fair Sentencing
3
Section 404 of the First Step Act provides in full:
(a) DEFINITION OF COVERED OFFENSE.—In this section, the term “covered
offense” means a violation of a Federal criminal statute, the statutory penalties for
which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public
Law 111-220; 124 Stat. 2372), that was committed before August 3, 2010.
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Act reduced the penalties for certain crack cocaine offenses. Fair Sentencing Act
of 2010, Pub. L. No. 111-220, §§ 2-3, 124 Stat. 2372, 2372. In particular, section
2 increased the quantity of crack required to trigger the statutory penalties
prescribed by §§ 841(b)(1) and 960(b). Id. § 2; see Dorsey v. United States,
567
U.S. 260, 264,
132 S. Ct. 2321, 2326 (2012). Section 2 raised the threshold for
§ 841(b)(1)(A)(iii)’s 20-year mandatory minimum from 50 grams to 280 grams
and the threshold for § 841(b)(1)(B)(iii)’s 10-year mandatory minimum from 5
grams to 28 grams. Fair Sentencing Act § 2. The First Step Act of 2018, in effect,
makes sections 2 and 3 of the Fair Sentencing Act of 2010 retroactive to Rivas’s
2008 sentencing.
Under the Fair Sentencing Act, Rivas’s mandatory minimum prison sentence
for his offense, which involved “28 grams or more” of crack cocaine, would have
been 10 years’ imprisonment, rather than the 20 years that applied at his 2008
(b) DEFENDANT’S PREVIOUSLY SENTENCED.—A court that imposed a
sentence for a covered offense may, on the motion of the defendant, the Director of
the Bureau of Prisons, the attorney for the Government, or the court, impose a
reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public
Law 111-220; 124 Stat. 2372) were in effect at the time of the covered offense.
(c) LIMITATIONS.—No court shall entertain a motion made under this section to
reduce a sentence if the sentence was previously imposed or previously reduced in
accordance with the amendments made by sections 2 and 3 of the Fair Sentencing
Act of 2010 (Public Law 111-220; 124 Stat. 2372) or if a previous motion made
under this section to reduce the sentence was, after the date of enactment of this
Act, denied after a complete review of the motion on the merits. Nothing in this
section shall be construed to require a court to reduce any sentence pursuant to this
section.
First Step Act § 404.
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sentencing. However, the statutory maximum penalty for Rivas’s offense would
not have changed under the Fair Sentencing Act but would have remained the
same. His mandatory minimum term of supervised release would have been 8
years, rather than 10 years. Compare 21 U.S.C. § 841(b)(1)(B)(iii) (2010); 21
U.S.C. § 841(b)(1)(A)(iii) (2008).
In his motion, Rivas argued that he was eligible for, and entitled to, a
sentence reduction. Rivas stated that he had not received any disciplinary reports
in prison and attached to his motion prison records showing that he had completed
various classes, including a drug class and GED classes, vocational training, and an
apprenticeship.
The government opposed Rivas’s 2018 motion. The government agreed that
Rivas’s offense of conviction was a “covered offense” under the First Step Act but
argued that his prison term should not be reduced. The government stressed that,
because the § 851 enhancement still applied, Rivas remained subject to the
statutory maximum of life imprisonment. Therefore, the government argued, even
if the Fair Sentencing Act had been in effect at the time of Rivas’s 2008
sentencing, he still would have qualified as a career offender under the Guidelines
and would have had the same advisory guidelines range. The government stated,
however, that it did not oppose a reduction in Rivas’s 10-year supervised release
term to the 8-year statutory minimum applicable after the Fair Sentencing Act.
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The district court denied Rivas’s motion for a sentence reduction. The
district court stated that Rivas’s “statutory maximum penalty did not change,” and
“the offense level under the career offender guideline remains a level 37, pursuant
to § 4B1.1(b).” After noting that the government did not oppose a reduction in
Rivas’s supervised release term, the district court ordered that Rivas’s “term of
Supervised Release is hereby reduced to EIGHT (8) YEARS.” The district court
denied Rivas’s subsequent motion for reconsideration.
II. DISCUSSION
On appeal, Rivas argues that: (1) the district court erred in denying his
motion on the ground that he was “ineligible” for a sentence reduction under the
First Step Act, and, alternatively, (2) the district court abused its discretion by
declining to reduce his prison sentence. After review of the record, however, we
conclude that the district denied Rivas’s motion as a matter of discretion and not
because Rivas was “ineligible” for a reduction under the First Step Act.
Furthermore, the district court did not abuse its discretion in reducing only Rivas’s
supervised release term. 4
4
This Court reviews de novo the district court’s authority to modify a sentence. United
States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010). We review the district court’s
decision to grant or deny a sentence reduction only for an abuse of discretion. United States v.
Caraballo-Martinez,
866 F.3d 1233, 1238 (11th Cir. 2017).
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“The law is clear that the district court has no inherent authority to modify a
sentence; it may do so only when authorized by a statute or rule.” United States v.
Puentes, 803 F.3d 597, 605-06 (11th Cir. 2015); see also 18 U.S.C.
§ 3582(c)(1)(B) (“The court may not modify a term of imprisonment once it has
been imposed except . . . to the extent otherwise expressly permitted by statute or
by Rule 35 of the Federal Rules of Criminal Procedure.”). As already discussed,
the First Step Act authorizes, but does not require, a district court to “impose a
reduced sentence” for a “covered offense” and to do so “as if sections 2 and 3 of
the Fair Sentencing Act . . . were in effect” when the defendant committed the
covered offense. First Step Act § 404(b). A “covered offense” is an offense for
which the “statutory penalties” were “modified” by section 2 or 3 of the Fair
Sentencing Act.
Id. § 404(a).
We reject Rivas’s contention that the district court found him “ineligible” for
a sentence reduction under the First Step Act. Nowhere in the order denying
Rivas’s motion does the district court state that Rivas is ineligible. Moreover, the
government did not argue before the district court that Rivas was ineligible for a
reduction under the First Step Act. Instead, the government conceded that Rivas’s
offense was a “covered offense” under the First Step Act, i.e., Rivas was eligible,
but argued that the district court should reduce only Rivas’s supervised release
term and not his prison term given that Rivas’s advisory guidelines range would
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have been the same had he been sentenced after the Fair Sentencing Act’s
enactment. Clearly, the district court determined that Rivas was eligible for a
reduction under the First Step Act because it reduced Rivas’s supervised release
term from 10 years to 8 years. Under a fair reading of the district court’s order, the
district court understood that it had the authority under the First Step Act to reduce
Rivas’s prison term and chose not to do so. 5
In declining to reduce Rivas’s 210-month prison term, the district court
stated correctly that Rivas’s “statutory maximum penalty [of life] did not change”
as a result of the First Step Act’s retroactive application of sections 2 and 3 of the
Fair Sentencing Act. The government complied with § 851(a)(1) by filing its
information before Rivas’s guilty plea, and § 851(a)(1) was unaffected by the First
Step Act. See First Step Act §§ 401-404, 132 Stat. at 5220-22; 21 U.S.C.
§ 851(a)(1).
As a consequence, if Rivas were to be sentenced “as if” sections 2 and 3 of
Fair Sentencing Act were in effect, Rivas’s offense level would “remain[ ] a level
37, pursuant to § 4B.1.1(b),” the career offender provision. That means Rivas’s
advisory guidelines range of 262 to 327 months would also be the same. As noted
5
Notably, roughly a week before denying Rivas’s motion for a sentence reduction, the
district court granted similar motions filed by two of Rivas’s codefendants who also were
convicted of the drug conspiracy and reduced their prison terms. This is further evidence that the
district court understood it also had authority to reduce Rivas’s prison term and decided, as a
matter of discretion, not to do so.
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above, Rivas’s original 240-month sentence already was the result of a downward
variance from that (still-applicable) advisory guidelines range. In addition, Rivas’s
prison sentence was further reduced to 210 months after the government’s Rule
35(b) motion. To be sure, after the First Step Act the district court was now free to
extend its original downward variance even further because the Fair Sentencing
Act lowered the applicable mandatory minimum for Rivas’s crack cocaine offense
from twenty years (240 months) to ten years (120 months). However, we cannot
say that Rivas has shown that the district court’s decision not to do so here was an
abuse of discretion.
AFFIRMED.
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