Case Information
*1 11 ‐ 2624 ‐ (L)
In the United States Court of Appeals For the Second Circuit ________
A UGUST T ERM , 2013 A RGUED : A PRIL 2014 D ECIDED : S EPTEMBER 2014 cr, cr, ‐ ‐ cr, ‐ 310 ‐ cr, 13 ‐ 1792 ‐ [*] U NITED S TATES OF A MERICA , Appellee,
R AUL R IOS , M IGUEL B AUTISTA AKA T ITA , Defendants Appellants.
________ Appeal District Court Southern District New York. Cr. – Jed S. Rakoff, Judge ________
Before: W ALKER P OOLER W ESLEY , Circuit Judges
________ Defendants Raul and Miguel Bautista pleaded guilty to one count distribute and possess intent distribute cocaine base. Following sentencing (Rakoff, J. ), each defendant twice moved pursuant reduced sentence light amendments made in Sentencing lowered levels applicable crimes involving certain quantities base. After holding an evidentiary hearing first motion, neither present nor represented, denied each defendant’s motions. Both defendants appealed, raising substantially similar but not identical arguments. We hold appropriately held hearing, did not clearly err making supported reducing sentences, properly Bautista’s reduced sentence, did violate constitutional rights. Accordingly, we AFFIRM.
________ R OBERT A. C ULP , Garrison, N.Y., Defendant Appellant Miguel L AURIE S. H ERSHEY Manhasset, N.Y., brief Defendant Appellant Raul C HRISTOPHER J. D I M ASE (Timothy D. Sini, Brent S. Wible, brief ), Assistant United States Attorney, Preet Bharara, Attorney, Attorney’s Office Southern District New York, New York, N.Y., Appellee ________
J OHN M. W ALKER J R ., Circuit Judge :
Defendants Raul and Miguel pleaded guilty to one count distribute possess intent distribute cocaine base. Following sentencing (Rakoff, J. ), each defendant twice moved pursuant reduced sentence light amendments made in Sentencing lowered levels applicable crimes involving certain quantities base. After holding an evidentiary hearing first motion, neither present nor represented, denied each defendant’s motions. Both defendants appealed, raising substantially similar but not identical arguments. We hold appropriately held hearing, did clearly err making supported reducing sentences, properly reduced sentence, and did violate Bautista’s constitutional rights. Accordingly, we AFFIRM.
BACKGROUND I. The Plea Agreement and Sentencing
On November Raul and Miguel separately each pleaded guilty to one count to distribute possess intent distribute base (“crack cocaine” or “crack”). In their plea agreements, both stipulated being responsible “1.5 or of” crack. Absent relevant statutory maximums, Guidelines range months’ imprisonment months’ life imprisonment. Because twenty year statutory maximum, however, defendants stipulated Guidelines sentences months’ imprisonment. Presentence Report (“PSR”) prepared Probation
Department each defendant determined same ranges as plea agreements. Each defendant’s PSR calculated defendant’s level basis Offense Conduct section PSR stated “the defendant’s criminal activity . crack.” This statement erroneous each defendant, however, Offense Conduct
11 2624 sections did specify the of in the defendants’ crimes.
In 2001, the judge sentenced each defendant in separate proceedings 240 months’ imprisonment. As to each defendant, written Statement Reasons in the judgment “adopt[ed] factual finding guideline application in presentence report.”
II. Defendants’ Motions Resentencing
A. 2007 Amendments Sentencing Guidelines In 2007, United States Sentencing Commission promulgated amendments Guidelines reduced by two points level every offense. Amendments Sentencing Courts, Fed. Reg. (2007) (cited Kimbrough U.S. (2007)). A judge permitted statute reduce term incarceration “in case defendant who has been sentenced term imprisonment sentencing range has subsequently been lowered.” U.S.C. § 3582(c)(2).
In December moved resentencing under light amendments. On February this motion, that, *6 11 2624 the of drugs involved, Guidelines range was lowered by the 2007 amendments. Rios 00 ‐ 579, 120, 2 Feb. 20, 2008).
On November 26, 2007, Rios filed motion resentencing under § light the amendments. On August the judge held hearing the motion which FBI Special Agent Carlos Mojica testified cross examined Rios’s counsel. was neither present nor represented Following hearing, bench, he part responsible “not only 4.5 crack but considerably more than that.” App. A87.
B. Amendments Sentencing Guidelines In Sentencing Commission amended further reduce base offense levels applicable crack offenses. See Johnson F.3d (2d Cir. As relevant here, prior amendments, distribution or resulted base offense level 38. U.S.S.G. 2D1.1(c)(1) (2009). After amendments, levels distribution follows: less
11 ‐ 2624 ‐ cr 2.8 kilograms, 36 2.8 less than 8.4 kilograms, and 38 for 8.4 or more kilograms. U.S.S.G. 2D1.1(c)(1) ‐ (3) (2011).
On October 14, 2011, Bautista filed second motion resentencing, based 2011 amendments crack Guidelines. A Supplemental PSR, Bautista’s counsel agreed, determined that Bautista’s new base offense level 36 his offense involving “about” five kilograms of crack, resulting Guidelines range of months. The district original sentence of months less than amended range. No. ECF No. 178, ‐ (S.D.N.Y. Dec. 13, 2011).
Bautista then unsuccessfully moved reconsideration. The explained Supplemental PSR found that his offense conduct involved distribution of about crack, resulting level of 36. Jan. The then noted recently concluded distribution “Rios co leaders distribution organization.” Id. “conclude[d] responsible distribution same amount ‐ as Rios, if more.” Id . 2. The district court thereupon reaffirmed “its earlier conclusion the correct base offense level 36, if higher.” Id
On November 9, 2011, Rios filed his second motion resentencing, this time light amendments to 2011, arguing his crime involved less than crack. On January 9, 2012, district denied this motion, finding Rios’s level 38. It stated that, on previous hearing, “now makes explicit its earlier implicit finding: Rios pled guilty distribution 8.4kg cocaine.” Rios No. 579, ECF No. 182, Jan. 9, 2012). district also noted this finding applies both Rios leaders organization. Id n.1. appealed this court, but
government acknowledging court’s seeming reliance PSR’s reference about kilograms, we remanded case reconsider Rios’s motion. (2d Cir. Jan. On March again motion, Rios’s PSR inaccurate when it stated “the defendant’s criminal activity involved . . . about five of crack” nothing Offense Conduct section or any other section indicated such a factual finding. at Mar. 2013). The district judge described PSR’s statement about a “mistaken cross reference, unsupported any facts or evidence, that, being nonsubstantive, Court saw no need correct” sentencing. Id . 5. held record from hearing “shows far kilogram threshold resentencing under current Guidelines.” Id 5.
Both appeal denial their motions resentencing.
DISCUSSION
“[W]e review court’s decision deny [for resentencing] under abuse discretion.” Borden F.3d (2d Cir. “[A] has abused its discretion if its ruling erroneous view law or clearly erroneous assessment evidence, or rendered decision cannot be located within range permissible decisions.” Id
I. Appropriateness of an Evidentiary Hearing
Rios Bautista argue the district court lacked authority under § 3582(c)(2) to hold evidentiary hearing to determine the quantity crack in the because the district court bound by the plea agreement, which they contend stipulated to 1.5 as the distribution amount. additionally argues the PSR, adopted by the court, found he guilty conspiring distribute crack, precluded the higher quantity the †
A considering resentence under § must
begin ”determin[ing] amended guideline range would have been applicable defendant” had relevant amendment been in effect time initial sentencing. ”In making such determination, shall substitute only amendments . corresponding guideline provisions applied when defendant sentenced shall leave all other guideline application decisions unaffected.” Dillon U.S. (2010) (alterations original) (quoting U.S.S.G. 1B1.10(b)(1)).
† does join this argument, presumably is entitled relief under amended only if quantity is found be less than 2.8 kilograms, whereas may obtain relief if found be less kilograms. 2624
In doing so, “district courts in § 3582(c)(2) proceedings cannot make findings inconsistent with original sentencing court.” United States v. Woods , F.3d (7th Cir. 2009); see also Adams , F.3d (8th Cir. 1997) (holding is implicit in § 3582(c)(2) proceeding “district leave all its previous factual decisions intact”). But “[n]othing prevents making new findings fact when ruling § 3582(c)(2) motion, so long as those findings are inconsistent those made original sentencing.” Davis F.3d (7th Cir. “Indeed, new findings are often necessary where, here, retroactive amendments have altered relevant quantity thresholds determining defendant’s level.” Id thus has “broad discretion how adjudicate proceeding[s],” Woods F.3d including whether hold
There no inconsistent findings here nothing original sentencing record conclusively found attributable defendants. Each defendant’s plea agreement stipulated “1.5 or of” crack. App. A14 (emphasis added); App. A14 (emphasis added). And while the PSR each defendant stated “[a]ccording Offense Conduct section, defendant’s criminal activity possession with intent distribute distribution about five kilograms of crack,” judge, considering resentencing, correctly recognized PSR’s “reference ‘about crack’ was” “mistaken” “unsupported any facts or evidence.” at Mar. record at sentencing thus did not establish quantity issue beyond plea agreements’ stipulation it least 1.5 kilograms. Accordingly, judge’s ultimate quantity attributable each defendant excess inconsistent any findings made original sentencing.
Moreover, it proper make its ultimate findings after Indeed, would have been possible apply amended without making such finding. cr
II. Drug Quantity Findings by the District Court at the
Evidentiary Hearing
The district court Rios’s motion resentencing finding that “the record [evidentiary] hearing shows that far kilogram threshold resentencing.” United States v. , No. 579, ECF No. 196, (S.D.N.Y. Mar. 15, 2013). The district relied same evidentiary hearing deny reconsideration and find “responsible same amount Rios, if more.” United States v. ‐ Jan. defendants argue evidence presented hearing insufficient support judge’s findings.
“When addressing claim there insufficient evidence support court’s quantity finding, we are mindful has broad discretion consider all relevant information, determination will be disturbed unless is clearly erroneous.” Richards F.3d (2d Cir. 2002) (internal quotation marks omitted). “A is clearly erroneous when although there is evidence support it, reviewing entire evidence left definite firm conviction mistake has been committed.” Guang F.3d (2d Cir. 2007) (internal quotation marks omitted).
FBI Special Agent Carlos Mujica, lead case agent investigation of Rios and Bautista, only witness testify at His testimony, credited by court, established and organization received shipments between twenty five and fifty kilograms of powder cocaine about every two weeks; time it raided it possessed least crack; it had chemicals convert powder into cocaine; and regularly did so. Mujica testified that, based on this evidence, he believed organization sold approximately three every month. and admitted being part months, December May 2000. government’s factual burden sentencing showing by preponderance evidence, beyond reasonable doubt. Thorn F.3d (2d Cir. 2003) (“[f]acts relied sentencing need be established preponderance evidence”). Under this standard Special Agent Mujica’s testimony, court’s determinations clearly erroneous. III. Bautista’s Guidelines Range
Bautista argues that he is entitled be resentenced because his new amended Guidelines range is lower his original Guidelines range based a later finding he conspired distribute five notwithstanding low end both ranges exceed month statutory cap. original Guidelines range months’ life his amended Guidelines range a kilogram months’. Both ranges subject month cap U.S.S.G. § 5G1.1(a), which states where a calculated range is above statutory maximum, “the statutorily authorized maximum sentence shall be guideline sentence.” argues, however, he should be resentenced under 3582(c)(2), authorizes resentencing when ranges are reduced makes no mention a statutory maximum or cap, because there is a reduction between two ranges. His apparent hope is such a resentencing, he could convince resentence him below statutory cap.
We need decide this issue even if his argument is correct, still ineligible reduced sentence. In considering reduced sentence, “shall 2624 not reduce defendant’s term imprisonment . a term is less than minimum amended guideline range” unless government moved at original sentencing a downward departure based defendant’s substantial assistance. U.S.S.G. § 1B1.10(b)(2). Bautista’s amended range, assuming a kilogram finding, is months’ government did not move substantial assistance downward departure at Bautista’s original sentencing. Bautista’s amended Guideline minimum absent statutory maximum thus fixed at months’. Because Bautista sentenced months’ imprisonment, lower amended range, he ineligible reduction under § 3582(c)(2).
IV. Right be Represented Rios’s Evidentiary
Hearing argues his due process rights violated his resentencing evidence adduced hearing, neither present nor represented. precise contours defendant’s constitutional rights resentencing proceeding are well defined. See, e.g. Dillon U.S. (2010) (stating “proceedings under do implicate Sixth Amendment right have essential facts found ‐ jury beyond a reasonable doubt”); Townsend F.3d (5th Cir. 1995) (holding that “under 3582(c)(2), may consider the testimony other proceedings,” but “a defendant must have notice considering the testimony such he will have opportunity respond testimony”).
We need decide whether district violated due process notice requirement, however, judge articulated sufficient basis denying Bautista’s motion for reconsideration independent evidence adduced In denying Bautista’s second motion resentencing, judge explained Bautista’s supplemental PSR concluded his offense “involved about crack,” making him ineligible reduced sentence. Dec. Bautista’s then counsel, Federal Defenders New York, agreed supplemental PSR’s calculations conclusions. Id
In denying Bautista’s reconsideration, again explained that, even according supplemental PSR, conduct distribution about 2624 kilograms crack and that both government and Bautista’s counsel agreed calculations. Rios ‐ Jan. The district court acknowledged that it found that was responsible for more than 8.4 based on It then stated, “Rios and co leaders distribution organization, Court concludes was responsible distribution same amount Rios, if more.” Id . 2. “The Court hereby denies Bautista’s motion reconsideration it reaffirms its earlier conclusion correct Base Offense Level if higher.” Id The district explained level offenses involving more than 2.8 but less than 8.4 crack. Id n.2.
Had relied on hearing denying Bautista’s motion, would have found Bautista’s offense level an involving kilograms. The instead explicitly reaffirmed its earlier finding—relying on agreement between government Bautista’s counsel— Bautista’s correct level based kilograms. thus reasons independent evidence Accordingly, due process argument without merit.
CONCLUSION For reasons stated above, we AFFIRM court’s denials defendants’ motions resentencing.
[*] Appeal number 11-2624 was dismissed by order on January 23, 2013. Appeal number 12-209 was remanded by order on January 15, 2013.