Case Information

UNITED STATES OF AMERICA v. CARLOS FRANCISCO ALVAREZ-RODRIGUEZ, a.k.a. Corbata

No. 21-10005

United States Court of Appeals For the Eleventh Circuit

March 7, 2022

Non-Argument Calendar

[DO NOT PUBLISH]

Plaintiff-Appellee,

versus

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida

D.C. Docket No. 1:13-cr-20618-FAM-4

Before BRANCH, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Carlos Alvarez-Rodriguez appeals the district court's denial of his motion for a reduced sentence. We affirm.

Alvarez-Rodriguez pleaded guilty to conspiring to possess with the intent to distribute five or more kilograms of cocaine. Alvarez-Rodriguez's base offense level was thirty-eight, but a "safety-valve" provision reduced it by two levels. Because he pleaded guilty, the offense level was reduced by another three levels for acceptance of responsibility, making his final offense level thirty-three and his advisory guideline range 135 months to 168 months' imprisonment.

While addressing the district court, though, Alvarez-Rodriguez minimized his role in the drug-smuggling operation, which the district court described as "backpedaling." Before imposing a sentence, the district court said that "based upon what the defendant [was] saying, [it] would be within the law to take away the acceptance of responsibility downward adjustment." But it "would not do that," the district court explained, "because [Alvarez-Rodriguez] accepted responsibility at the time of the guilty plea." The district court denied Alvarez-Rodriguez's motion for a downward variance and gave him a bottom-of-the-guidelines sentence of 135 months' imprisonment. In its statement of reasons, the district court marked that it had accepted the presentencing investigation report-which included the three-level acceptance of responsibility reduction-without change. Alvarez-Rodriguez did not appeal.

Three years later, Alvarez-Rodriguez moved to reduce his sentence because he accepted responsibility. Although he said, several times, that his motion should not be construed as one under section 2255, Alvarez-Rodriguez argued that his lawyer was ineffective by failing to ensure proper application of the reduction. As relief, Alvarez-Rodriguez requested that his sentence be reduced to time served to address the disparity between his sentence and his codefendants' sentences.

The government opposed Alvarez-Rodriguez's request. First, the government contended that the district court should treat Alvarez-Rodriguez's motion as a motion to vacate under 28 U.S.C. section 2255 and deny it as untimely. Second, it argued that Alvarez-Rodriguez's motion was moot because he had already received the three-level reduction for acceptance of responsibility. Third, the government responded that the district court lacked authority under section 3582(c) to reduce Alvarez-Rodriguez's sentence. The district court adopted the government's response and denied the motion.

On appeal, Alvarez-Rodriguez contends that the district court erred in denying his motion because he was eligible for a reduced sentence under the First Step Act.1 Alvarez-Rodriguez argues that his sentence should have been reduced because he accepted responsibility and to address the unwarranted sentencing disparity between him and his codefendants. But neither argument provides a basis to reduce his sentence under the First Step Act.

Generally, there are two ways to get a sentence reduction under the First Step Act. In the first way, a defendant sentenced before August 3, 2010 for certain crack cocaine offenses may be eligible for a reduced sentence. See First Step Act of 2018, Pub. L. No. 115-391, § 404(b)-(c), 132 Stat. 5194, 5222 (2018) ("A court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed."). But Alvarez-Rodriguez isn't eligible for a sentence reduction under this part of the First Step Act because he was not sentenced for a crack cocaine offense and he was not sentenced before August 3, 2010. Alvarez-Rodriguez was sentenced for a powder cocaine offense and he was sentenced in May 2016.

In the second way, "a district court may reduce a term of imprisonment if (1) the [section] 3553(a) sentencing factors favor doing so, (2) there are 'extraordinary and compelling reasons' for doing so, and . . . (3) doing so wouldn't endanger any person or the

community within the meaning of [section] 1B1.13's policy statement." United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). But "extraordinary and compelling" reasons are limited to those consistent with the policy statement in section 1B1.13 of the sentencing guidelines. See United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021) ("[D]istrict courts may not reduce a sentence under Section 3582(c)(1)(A) unless a reduction would be consistent with 1B1.13."). And Alvarez-Rodriguez's reasons for a reduced sentence-acceptance of responsibility and an unwarranted sentencing disparity between codefendants-are not consistent with section 1B1.13. See U.S.S.G. § 1B1.13 (listing medical condition, advanced age, family circumstances, and other reasons as determined by the Director of the Bureau of Prisons).

Either way, Alvarez-Rodriguez was not eligible under the First Step Act for a sentence reduction. And, because Alvarez-Rodriguez was not eligible under the First Step Act, we affirm the district court's order denying his sentence reduction motion.

AFFIRMED.

Footnotes

1 We review de novo "whether a district court had the authority to modify a [defendant's] term of imprisonment" under the First Step Act. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020).