[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12172

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

FAUSTO AGUERO ALVARADO, 

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:11-cr-20026-KMM-5

____________________

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2 Opinion of the Court 22-12172

Before LAGOA, ANDERSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Fausto Aguero Alvarado, a federal prisoner at 

FCI Bennettsville, appeals the district court’s denial of his motion 

for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on 

Amendment 782 to the sentencing guidelines and his motion for 

compassionate release pursuant to § 3582(c)(1)(A). The Government has filed a motion for summary affirmance. We find no error 

in the district court’s rulings, and we conclude that summary affirmance is warranted. Thus, we GRANT the Government’s motion 

and AFFIRM the district court’s denial of both motions. 

BACKGROUND 

In July 2013, Defendant was convicted by a jury of conspiring to distribute cocaine knowing that it would be imported into 

the United States, in violation of 21 U.S.C. §§ 959(a), 963, and 

960(b)(1)(B). In its verdict, the jury expressly found that Defendant 

conspired to distribute cocaine “weighing five kilograms or more.” 

Five kilograms is the amount of cocaine necessary to impose the 

maximum penalty provided for in 21 U.S.C. § 960(b), including a 

minimum term of ten years and a maximum term of life imprisonment. See 21 U.S.C. § 960(b)(1)(B). 

According to the undisputed facts in the PSR, Defendant’s 

conviction arose from an investigation conducted by the Drug Enforcement Agency, the United States Department of Homeland 

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Security (“DHS”), and Colombian law enforcement in 2009 concerning the sale of weapons to a terrorist organization in Colombia 

in exchange for cocaine. During the investigation, Defendant informed a Confidential Informant (“CI”) that he had “M-60 machine 

guns, AK-47s, Red Eye surface-to-air missiles” and other weapons 

manufactured in the United States that were available to be sold in 

Honduras and Nicaragua. Defendant also told the CI that he had a 

connection with a Nicaraguan national named Franklin McFieldBent who ran a drug trafficking organization in Colombia that 

transported drugs throughout Central America and into Mexico. 

The authorities subsequently learned that Defendant had introduced McField-Bent to a woman named Lina Grandet who purportedly had between 1,000 and 1,500 kilograms of cocaine in Colombia available to ship to Honduras. McField-Bent arranged to 

send $20,000 to Grandet to initiate a purchase of the cocaine, but 

the purchase was not completed. 

Later in the investigation, the CI met with and advised Defendant that he was trying to acquire weapons for Autodefensas 

Unidas de Colombia, a Colombian organization that DHS has identified as an armed and violent foreign terrorist group. After the CI 

made a down payment of $3,000 to one of Defendant’s associates 

for weapons to be provided in the future, Defendant introduced 

the CI to McField-Bent. Thereafter, Defendant served as a middleman or broker for several deals between the CI and McField-Bent 

involving the exchange of weapons manufactured in the United 

States for hundreds of kilograms of cocaine located in Colombia. 

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Evidence recovered by Colombian police indicates that one of the 

deals involved 442 kilograms of cocaine and another, separate deal 

involved 400 kilograms of cocaine. These quantities are in addition 

to the 1,000 to 1,500 kilograms of cocaine involved in the deal between McField-Bent and Grandet referenced above. Based on 

these quantities, the PSR concluded that Defendant was accountable for “well over 150 kilograms of cocaine.” 

The PSR assigned Defendant the highest base offense level 

of 38 pursuant to § 2D1.1(a)(5) of the sentencing guidelines, which 

at the time applied to an offense involving 150 kilograms or more 

of cocaine. The PSR added a 2-level enhancement for obstruction 

of justice, resulting in a total offense level of 40. Defendant’s criminal history category was I, yielding a recommended guidelines 

range of 292 to 365 months in prison, with a ten-year minimum 

term of imprisonment and a maximum term of life pursuant to 21 

U.S.C. § 960(b)(1)(B)(ii). 

Defendant stated at his sentencing hearing that he did not 

have any objections to the PSR’s description of his offense conduct 

or to its calculations.1 Consistent with the recommendations in the 

PSR, the district court sentenced Defendant to 360 months in 

prison, to be followed by five years of supervised release. This 

1 Defendant initially asserted two objections to the PSR: (1) that the PSR 

incorrectly stated that Defendant received $3,000, money Defendant claimed 

was given to his co-defendant McField-Bent, and (2) that the PSR improperly 

applied the 2-level obstruction of justice enhancement. Defense counsel represented at the sentencing hearing that those objections had been resolved. 

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Court affirmed Defendant’s conviction and sentence on direct appeal. See United States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 

2015). In its opinion, the Court specifically referenced deals involving Defendant that included 1,000 kilograms and 400 kilograms of 

cocaine, respectively. See id. at 480–81.

In March 2019, Defendant filed a pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782 

to the sentencing guidelines. In support of his motion, Defendant 

argued that his base offense level of 38, the level that applied to 150 

kilograms of cocaine at the time of his original sentencing, should 

be reduced by two levels to 36 under Amendment 782, a retroactively applicable amendment to the sentencing guidelines that lowered the base offense level for offenses involving at least 150 kilograms but less than 450 kilograms of cocaine. Defendant claimed 

the guidelines adjustment would result in a recommended guidelines range of 235 to 293 months in prison for his offense. 

In July 2020, Defendant filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). As amended by the 

First Step Act of 2018 (the “First Step Act”), that statute authorizes 

a district court to reduce a defendant’s sentence if the reduction is 

warranted by “extraordinary and compelling reasons” and if it is 

consistent with the sentencing factors set forth in 18 U.S.C. 

§ 3553(a) and the applicable guidelines policy statements. See 18 

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U.S.C. § 3582(c)(1)(A)(i).2 In support of his motion for compassionate release, Defendant argued that he was vulnerable to contracting COVID-19 because of the “poor sanitary conditions at his facility” and because of the many cases of COVID-19 among BOP staff 

and inmates. Additionally, Defendant argued that he had a “flawless” inmate disciplinary record and that he had been involved in 

continuous programming while in prison and at one point had 

acted heroically to “sav[e] the life of an employee of the United 

States Government.” Finally, Defendant emphasized his rehabilitation efforts and he claimed that he no longer posed any danger to 

the public. 

The district court denied Defendant’s motions for a sentence 

reduction and for compassionate release in a single order. Regarding the Amendment 782 motion, the court cited undisputed facts 

in the PSR indicating that Defendant was accountable for at least 

1,842 kilograms of cocaine, which quantity-finding triggered the 

same base offense level of 38 even when one applied Amendment 

782. The court thus concluded that Defendant did not show he 

was entitled to a lower guidelines range under Amendment 782, as 

required to invoke § 3582(c)(2). As to compassionate release under 

§ 3582(c)(1)(A), the district court found that Defendant did not satisfy his burden of demonstrating extraordinary and compelling 

2 Section 3582(c)(1)(A) also authorizes a sentence reduction under certain circumstances if “the defendant is at least 70 years of age” but it is undisputed 

that Defendant does not qualify for an age-based sentence reduction. See 18 

U.S.C. § 3582(c)(1)(A)(ii). 

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reasons for his release, as required under that provision. Alternatively, the court stated that the § 3553(a) factors weighed against 

compassionate release. 

Defendant appeals, arguing that the district court erred and 

abused its discretion when it denied his motion for a sentence reduction under § 3582(c)(2). As to his motion for compassionate 

release, Defendant essentially concedes that he does not qualify for 

relief under § 3582(c)(1)(A) based on any of the grounds this Court 

held in United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021) can 

support such relief—that is, an inmate’s age, qualifying medical 

condition, or family circumstances. Instead, Defendant argues that 

the Court should abandon its precedent in Bryant and expand its 

definition of what qualifies as an extraordinary and compelling reason justifying compassionate release under § 3582(c)(1)(A). 

DISCUSSION

I. Standards of Review

We review de novo a district court’s legal conclusions about 

the scope of its authority to modify a sentence under 18 U.S.C. § 

3582(c)(2). United States v. Caraballo-Martinez, 866 F.3d 1233, 

1238 (11th Cir. 2017). Assuming the district court has such authority, we review the court’s decision to grant or deny a sentence reduction under § 3582(c)(2) only for abuse of discretion. Id. Similarly, we review de novo whether a defendant is eligible for compassionate release pursuant to § 3582(c)(1)(A) and, if eligibility is 

established, we review the denial of a motion for compassionate 

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release for abuse of discretion. United States v. Giron, 15 F.4th 

1343, 1345 (11th Cir. 2021). “A district court abuses its discretion if 

it applies an incorrect legal standard, follows improper procedures 

in making the determination, or makes findings of fact that are 

clearly erroneous.” United States v. Harris, 989 F.3d 908, 911–12 

(11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d 

1259, 1267 (11th Cir. 2019) (quotation marks omitted)). 

Summary disposition of an appeal is appropriate when “the 

position of one of the parties is clearly right as a matter of law so 

that there can be no substantial question as to the outcome of the 

case, or where, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th 

Cir. 1969).3 This Court has used summary disposition to resolve 

appeals that do not warrant extended discussion. 

II. Defendant’s Motion for a Sentence Reduction Under 18 

U.S.C. § 3582(c)(2) 

Defendant argues that the district court erred when it denied 

his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) 

based on Amendment 782 to the sentencing guidelines, which was 

implemented after Defendant was sentenced. Amendment 782 reduced by two levels the base offense level applicable to certain drug 

offenses under § 2D1.1(c) of the guidelines. See Hughes v. United 

3 Decisions of the United States Court of Appeals for the Fifth Circuit issued 

before October 1, 1981, are binding on this Court. Bonner v. City of Prichard, 

661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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States, 138 S. Ct. 1765, 1774 (2018). Of relevance here, Amendment 

782 lowered the base offense level for offenses involving at least 

150 kilograms but less than 450 kilograms of cocaine to 36, and it 

reserved the highest base offense level of 38 for offenses involving 

450 kilograms or more of cocaine. See U.S.S.G. App. C, Amend. 

782 (2014). As noted, the PSR assigned Defendant a base offense 

level of 38, which at the time of Defendant’s sentencing applied to 

offenses involving at least 150 kilograms of cocaine. See U.S.S.G. § 

2D1.1(c) (2013). Defendant contends that, per his § 3582(c)(2) motion, the district court should have retroactively applied Amendment 782, lowered his base offense level from 38 to 36, recalculated 

his guidelines range, and reduced his sentence accordingly. 

A district court’s authority to modify a prison sentence “is 

narrowly limited by statute.” United States v. Phillips, 597 F.3d 

1190, 1194–95 (11th Cir. 2010). Section 3582(c)(2) provides for such 

authority under certain circumstances when a defendant was “sentenced to a term of imprisonment based on a [guidelines] range 

that has subsequently been lowered.” 18 U.S.C. § 3582(c)(2). See 

also United States v. Hamilton, 715 F.3d 328, 336–37 (11th Cir. 

2013) (explaining the governing principles applicable to a § 

3582(c)(2) motion for a sentence reduction). To authorize a sentence reduction, an amendment to the guidelines must be listed in 

§ 1B1.10 of the guidelines as retroactively applicable, and the 

amendment must in fact result in a lower sentencing range than 

the range upon which the defendant’s sentence was based. See 

Hamilton, 715 F.3d at 337 (noting that a sentence reduction is not 

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authorized by § 3582(c)(2) “if the amendment does not have the 

effect of lowering the defendant’s applicable guidelines range” (citation and quotation marks omitted)). Assuming both of those requirements are met, the district court still must exercise its discretion to determine whether a sentence reduction is warranted based 

on the sentencing factors of 18 U.S.C. § 3553(a), as well as any applicable guidelines policy statements. See id. 

Applying the principles set out above, a two-step analysis 

governs a defendant’s motion for a sentence reduction under 

§ 3582(c)(2). See United States v. Bravo, 203 F.3d 778, 780 (11th 

Cir. 2000). First, the district court must determine whether a retroactively applicable amendment to the sentencing guidelines results in a lower guidelines range for the defendant, thus making 

him eligible for a reduced sentence. See Hamilton, 715 F.3d at 337. 

In making that determination, the district court must leave intact 

“all of its previous factual decisions”—including any drug quantity 

findings. See id. (citation and quotation marks omitted). See also 

United States v. Jackson, 58 F.4th 1331, 1336 (11th Cir. 2023) (reaffirming the rule in this circuit that a district court, when considering a First Step Act motion, is bound by prior fact findings—including judge-made drug quantity findings that trigger penalties later 

modified by the Act). As the § 3582(c)(2) movant, the defendant 

has the burden at this stage of showing, based on those findings, 

that he would have received a lower guidelines range if the amendment “had been in effect at the time of his original sentencing.” 

Hamilton, 715 F.3d at 341. Next, and assuming the defendant has 

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shown he is eligible for a sentence reduction under § 3582(c)(2), the 

court must decide at the second stage of the analysis “whether, in 

its discretion, it will elect to impose the newly calculated sentence 

under the amended guidelines or retain the original sentence” after 

considering the pertinent § 3553(a) sentencing factors and any applicable guidelines policy statements. See Bravo, 203 F.3d at 781. 

Here, the district court correctly found at the first stage of 

the analysis that Defendant is not eligible for a sentence reduction 

under § 3582(c)(2). As the court acknowledged, Amendment 782 

is retroactively applicable per § 1B1.10 of the guidelines. See 

U.S.S.G. § 1B1.10(d). Nevertheless, Defendant failed to demonstrate that his offense involved less than 450 kilograms of cocaine, 

such that his base offense level would be lower under Amendment 

782 than the level that was applied at his sentencing. On the contrary, the unobjected to—and thus undisputed—facts in the PSR 

show that Defendant’s offense involved a minimum of 1,842 kilograms of cocaine. See United States v. Davis, 587 F.3d 1300, 1303–

04 (11th Cir. 2009) (holding that the defendant was “deemed to 

have admitted, for sentencing purposes, the facts in the PS[R] he 

did not object to clearly and specifically at sentencing” and that the 

district court was “permitted to make factual findings based on the 

undisputed statements in the PS[R]” when ruling on the defendant’s § 3582(c)(2) motion for a sentence reduction). As such, Defendant’s base offense level under Amendment 782 would be 38, 

the same base offense level applied at his sentencing. See U.S.S.G. 

App. C, Amend. 782 (2014). Accordingly, the district court was not 

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authorized by § 3582(c)(2) to reduce Defendant’s sentence and it 

clearly did not err when it denied Defendant’s motion for a sentence reduction under that provision. See Hamilton, 715 F.3d at 

337. 

The only substantive argument Defendant makes in support 

of his appeal as to the § 3582(c)(2) issue is that he was sentenced 

based on “uncharged quantities” of drugs, in contravention to Alleyne v. United States, 570 U.S. 99 (2013). Alleyne has no relevance 

to Defendant’s case. In Alleyne, the Supreme Court held that 

“[f]acts that increase the mandatory minimum sentence are . . . elements and must be submitted to the jury and found beyond a reasonable doubt.” Id. at 108. Here, there is no dispute that Defendant’s mandatory minimum was based on the jury’s finding that he 

conspired to distribute cocaine “weighing five kilograms or more.” 

See 21 U.S.C. § 960(b)(1)(B). Further, the Court’s holding in Alleyne derives from a criminal defendant’s Sixth Amendment right 

to a jury trial. See Alleyne, 570 U.S. at 104. The Supreme Court 

has made it clear that the sentence modification procedures of § 

3582(c)(2) “are not constitutionally compelled” and thus “do not 

implicate the Sixth Amendment right to have essential facts found 

by a jury beyond a reasonable doubt.” Dillon v. United States, 560 

U.S. 817, 828 (2010). 

In short, the district court did not err when it denied Defendant’s motion for a reduced sentence under § 3582(c)(2), and the 

Government’s argument to that effect clearly is correct as a matter 

of law. See Groendyke Transp., Inc., 406 F.2d at 1162. The 

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Government’s motion for summary affirmance is thus GRANTED

as to this issue, and the district court’s order denying the motion is 

AFFIRMED. 

III. Compassionate Release 

Defendant also argues that the district court erred by denying his motion for compassionate release under 18 U.S.C. 

§ 3582(c)(1)(A). As amended by the First Step Act, § 3582(c)(1)(A) 

authorizes the district court to grant a defendant’s motion for compassionate release if: (1) “extraordinary and compelling reasons 

warrant” such relief and (2) the defendant’s release is consistent 

with the sentencing factors of § 3553(a) and the “applicable policy 

statements issued by the Sentencing Commission.” 18 U.S.C. § 

3582(c)(1)(A)(i). The relevant policy statement, found in U.S.S.G. 

§ 1B1.13, echoes the statutory requirements, stating that a district 

court may grant a defendant’s motion for compassionate release 

“if, after considering the factors set forth in . . . § 3553(a),” the court 

determines that: (1) “[e]xtraordinary and compelling reasons warrant” the defendant’s release and (2) “[t]he defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” See U.S.S.G. § 1B1.13. See also 

United States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021) 

(“1B1.13 is an applicable policy statement for all [§ 3582(c)(1)(A)] 

motions[.]”); United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 

2021) (listing three conditions that are necessary for a sentence reduction under § 3582(c)(1)(A): support in the § 3553(a) factors, 

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extraordinary and compelling reasons, and adherence to U.S.S.G. 

§ 1B1.13’s policy statement).

The applicable guidelines policy statement, cited above, 

identifies three extraordinary and compelling reasons that can authorize a court to grant a motion for compassionate release under 

§ 3582(c)(1)(A). See U.S.S.G. § 1B1.13, cmt. n.1(A)-(C). First, a defendant’s medical condition can constitute an extraordinary and 

compelling reason for release if the defendant can show that he is 

suffering either from a “terminal illness” or a “serious physical or 

medical condition” that “substantially diminishes [his] ability . . . to 

provide self-care” in prison and “from which he . . . is not expected 

to recover.” U.S.S.G. § 1B1.13, cmt. n.1(A). Second, release is permitted under certain circumstances if the defendant is at least 65 

years old. See U.S.S.G. § 1B1.13, cmt. n.1(B). And finally, a defendant’s family circumstances can create an extraordinary and compelling reason for release based on the “death or incapacitation of the 

caregiver of the defendant’s minor child” or the “incapacitation of 

the defendant’s spouse or registered partner when the defendant 

would be the only available caregiver for the spouse or registered 

partner.” U.S.S.G. § 1B1.13, cmt. n.1(C). The policy statement also 

contains a catch-all provision that allows the Bureau of Prisons 

(“BOP”) to determine that there are other extraordinary and compelling reasons for a particular defendant’s release, but this Court 

has held that only the BOP—as opposed to the court—has the authority to determine that release is warranted under that provision. 

See Bryant, 996 F.3d at 1263 (“We cannot replace the phrase ‘[a]s 

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determined by the Director of the [BOP]’ with ‘as determined by a 

district court.’”). 

Defendant does not demonstrate—or even argue—that he 

is eligible for compassionate release based on any of the reasons set 

out above. Instead, he argues for release under § 3582(c)(1)(A) as a 

result of: (1) his susceptibility to COVID-19 based on the poor sanitary conditions of prison, (2) his “flawless” discipline record; (3) his 

heroic action saving the life of an employee of the United States 

Government, and (4) his rehabilitation. This Court held in Bryant 

that relief can only be granted under § 3582(c)(1)(A) based on one 

of the reasons expressly set out in the applicable guidelines policy 

statement—that is, a qualifying medical condition, advanced age, 

or family circumstances requiring the defendant to act as a caretaker to a minor child, spouse, or registered partner. See id. at 1265 

(“Because [the defendant’s] motion does not fall within any of the 

reasons that 1B1.13 identifies as extraordinary and compelling, the 

district court correctly denied his motion for a reduction of his sentence.” (quotation marks omitted)). The factors cited by Defendant do not qualify. As such, summary affirmance is warranted because Defendant failed to establish extraordinary and compelling 

reasons to justify his compassionate release. 

Defendant essentially concedes that his compassionate release motion is not viable under Bryant, but he urges the Court to 

reconsider and vacate the panel opinion in Bryant based on precedent from other circuits and district courts around the country. Defendant’s argument is precluded by this Court’s prior panel 

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precedent rule. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 

2015). Under that rule, “a prior panel’s holding is binding on all 

subsequent panels unless and until it is overruled or undermined 

to the point of abrogation by the Supreme Court” or by this Court 

sitting en banc. Id. Because Bryant has not been overturned by the 

Supreme Court or this Court sitting en banc, this Court is bound 

by it. Defendant’s argument that we should disregard Bryant is 

thus clearly unavailing.

CONCLUSION 

As the movant, Defendant had the burden of establishing his 

eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) and 

compassionate release under 18 U.S.C. § 3582(c)(1)(A). See Hamilton, 715 F.3d at 337. The district court correctly held that Defendant failed to meet that burden here. The Government’s motion for 

summary affirmance is thus GRANTED, and the court’s order 

denying both Defendant’s motion for a sentence reduction under 

§ 3582(c)(2) and his motion for compassionate release under 

§ 3582(c)(1)(A) is AFFIRMED. 

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