Filed: Dec. 12, 2019
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-10342 Plaintiff-Appellee, D.C. No. 1:08-cr-00124-AWI-1 v. EUSTORGIO FLORES, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding Submitted December 4, 2019** San Francisco, California Before: THOMAS, Chief Judge, and W. FLET
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-10342 Plaintiff-Appellee, D.C. No. 1:08-cr-00124-AWI-1 v. EUSTORGIO FLORES, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding Submitted December 4, 2019** San Francisco, California Before: THOMAS, Chief Judge, and W. FLETC..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10342
Plaintiff-Appellee, D.C. No.
1:08-cr-00124-AWI-1
v.
EUSTORGIO FLORES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted December 4, 2019**
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
Following a jury trial, Eustorgio Flores was convicted of four drug-
trafficking offenses related to his involvement in a conspiracy to distribute
methamphetamine and cocaine. He was sentenced to 324 months of imprisonment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
on each count, to be served concurrently. Flores now appeals from the district
court’s order denying his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
At Flores’s sentencing, the district court explained: “If I ignore the quantities
in the Hawaii transactions which could easily be attributable, we still have the 1.5
or more kilos of crystal meth” from other drug transactions, “which equates to a
level 38,” the maximum offense level provided under the Sentencing Guidelines,
U.S.S.G. § 2D1.1(c) (2010). Following the retirement of the sentencing judge, and
an amendment to the Sentencing Guidelines that reduced by two levels the base
offense levels associated with drug quantities, U.S.S.G. supp. app. C., amend. 782
(Nov. 1, 2014), Flores presented his motion for a sentence reduction to a different
district judge. In response to that motion, the court made a supplemental finding
that Flores was responsible for an additional 2.267 kilograms of methamphetamine
beyond the amount that formed the basis for his initial sentence. Because the total
drug quantity exceeded 4.5 kilograms, Flores’s base offense level remained 38
notwithstanding Amendment 782, and Flores’s guidelines range was unchanged.
The court therefore deemed Flores ineligible for a sentence reduction. See U.S.S.G.
§ 1B1.10(b)(2)(A).
1. Flores argues that the district court was not free to revisit the drug
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quantity attributable to him because the sentencing judge made a “complete”
finding at sentencing. We review de novo whether the district court “may
supplement the original sentencing court’s drug quantity findings” when
adjudicating a motion for sentence reduction under section 3582(c)(2). United
States v. Mercado-Moreno,
869 F.3d 942, 953 (9th Cir. 2017).
In Mercado-Moreno, we held that a district court evaluating a motion for a
sentence reduction may make supplemental drug quantity findings when “the
sentencing court’s quantity finding is ambiguous or incomplete.”
Id. at 954. And
we explained that supplemental findings would be appropriate if the sentencing
judge had “quantified only part of the amount for which [d]efendant was
responsible, without making a specific finding as to the rest, because that partial
amount supported the maximum base offense level at the time of sentencing.” Id.;
accord United States v. Rodriguez,
921 F.3d 1149, 1158 (9th Cir. 2019).
That is what happened here. As the district court correctly determined, the
sentencing judge did not make a complete finding regarding the total quantity of
drugs for which Flores was responsible. To the contrary, the sentencing judge
expressly acknowledged that other amounts could be attributable to Flores, but that
no finding was necessary because the amount attributable to Flores already
exceeded the threshold for the maximum base offense level under the Drug
Quantity Table in effect at the time. Under Mercado-Moreno, therefore, it was
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appropriate for the district court to make supplemental findings in ruling on
Flores’s motion.
2. Flores argues that the district court should have held an evidentiary
hearing before making supplemental findings. “A district court has broad
discretion in how to adjudicate § 3582(c)(2) proceedings, including whether to
hold a hearing when making supplemental determinations of drug quantity.”
Mercado-Moreno, 869 F.3d at 955.
We are not persuaded that a hearing was necessary. The district court
“reviewed the trial transcript, the presentence report, the verdict, the third
superseding indictment, and the sentencing transcript.” The district court
considered Flores’s challenge to the credibility of one of the government’s
witnesses. It also explained why it disagreed with one of Flores’s objections to the
presentence report. Its supplemental findings were based on the evidence in the
record at sentencing. Its decision reflects a reasoned consideration and rejection of
Flores’s objections and arguments about the disputed evidence in the record. The
district court did not abuse its discretion when it determined that no hearing was
necessary. See
Mercado-Moreno, 869 F.3d at 955 (“When the district court does
not consider any evidence outside of the record at sentencing, an evidentiary
hearing will not always be necessary.”).
3. Along similar lines, Flores argues that the Sentencing Guidelines
4
require a sentencing hearing to “resolve disputed sentencing factors.” U.S.S.G.
§ 6A1.3(b); see Fed. R. Crim P. 32(i)(4). But “a district court proceeding under
§ 3582(c)(2) does not impose a new sentence in the usual sense.” Dillon v. United
States,
560 U.S. 817, 827 (2010). Proceedings under section 3582(c)(2) do not
require a sentencing hearing because they involve “only a limited adjustment to an
otherwise final sentence and not a plenary resentencing proceeding.” Mercado-
Moreno, 869 F.3d at 956 (quoting
Dillon, 560 U.S. at 826). Flores contends that
the denial of a hearing violated due process, but he does not show how the process
he received was inadequate. His drug quantity arguments were fully developed in
the record reviewed by the district court.
AFFIRMED.
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