19-2202-cr

United States v. Echeverry

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2020

No. 19-2202-cr

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS ECHEVERRY,

Defendant-Appellant.

On Appeal from the United States District Court 

for the Southern District of New York

SUBMITTED: OCTOBER 14, 2020

DECIDED: OCTOBER 28. 2020

Before: WALKER AND MENASHI, Circuit Judges.*

In this appeal, Carlos Echeverry challenges a decision of the 

United States District Court for the Southern District of New York 

* Senior Circuit Judge Ralph K. Winter, originally a member of the panel, is 

currently unavailable, and the appeal is being adjudicated by the two 

available members of the panel, who are in agreement. See 2d Cir. IOP E(b).
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(Woods, J.) denying relief under the First Step Act. Echeverry argues 

that, because he pleaded guilty to an offense—conspiracy to

distribute, and to possess with intent to distribute, crack cocaine—the 

penalties for which were altered by the Fair Sentencing Act, the 

district court had the authority to reduce his sentence. We disagree. 

Under the First Step Act, a district court has the authority to lower a 

sentence only if that sentence could have been lower had the Fair 

Sentencing Act applied. Here, Echeverry pleaded guilty to an 

information that charged, in its first count, that Echeverry committed 

three offenses—distributing, and possessing with intent to distribute, 

crack cocaine, cocaine, and heroin. Because the Fair Sentencing Act 

did not alter the mandatory minimum sentences triggered by the 

quantities of heroin and cocaine charged in count one of the 

information, Echeverry’s sentence could not have been lower than 120 

months. Because the district court lacked authority to reduce 

Echeverry’s sentence, we AFFIRM.

Carlos Echeverry, White Deer, PA, pro se.

Michael McGinnis and Anna M. Skotko, 

Assistant United States Attorneys, for 

Audrey Strauss, Acting United States 

Attorney for the Southern District of New 

York, New York, NY. 

PER CURIAM:

Appellant Carlos Echeverry challenges a decision of the U.S. 

District Court for the Southern District of New York (Woods, J.) 
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denying Echeverry’s motion to reduce his sentence of 120 months’ 

imprisonment under the First Step Act. Under the Act, a defendant 

may move a district court to reduce his sentence if his sentence would 

have been lower had the Fair Sentencing Act been in effect. As 

relevant here, the Fair Sentencing Act increased the quantity of crack 

cocaine required to trigger a mandatory minimum sentence under

21 U.S.C. § 841. Echeverry argues that, because he was charged with 

and pleaded guilty to an offense involving the distribution of crack 

cocaine, the district court erred when it concluded that this conviction 

for two other offenses—both of which had a mandatory minimum 

sentence of 120 months—precluded First Step Act relief. We conclude 

the district court was correct and affirm. 

I

“On September 27, 2004, Echeverry handed a jacket containing 

315 grams of heroin to an undercover detective and discussed 

payment terms with that detective.” Echeverry v. United States, No. 04-

CR-1162, 2013 WL 5548801, at *1 (S.D.N.Y. Oct. 8, 2013). After his 

arrest, a grand jury issued an indictment that charged the 

distribution, and possession with intent to distribute, of 315 grams of 

heroin. In response, Echeverry attended a series of proffer sessions in 

which he disclosed his extensive background in drug trafficking and 

his involvement in an attempt to collect a drug debt that resulted in 

the discharge of a firearm. Entering into a cooperation agreement, 

Echeverry waived indictment and, in 2005, he pleaded guilty to a twocount information. Count one charged Echeverry “with conspiring to 

distribute, and to possess with the intent to distribute, (a) five or more 

kilograms of cocaine, (b) one or more kilograms of heroin, and (c) 50 

or more grams of cocaine base.” Id. Count two charged Echeverry 

“with aiding and abetting the use, carrying, and discharge of a 
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firearm during and in relation to a drug-trafficking offense.” Id. After 

the plea hearing, Echeverry was released on bail so that he could 

continue his cooperation with the government. 

In 2007, Echeverry was arrested for the possession and sale of a 

controlled substance in the State of New York. In 2010, the district 

court sentenced Echeverry to a term of 240 months’ imprisonment—

120 months for each count of the information—and a term of five 

years’ supervised release. This court affirmed. See United States v. 

Echeverry, 649 F.3d 159 (2d Cir. 2011). On November 14, 2012, 

Echeverry filed a motion under 28 U.S.C. § 2255, which permits “[a] 

prisoner in custody under sentence of a court established by Act of 

Congress” to “move the court which imposed the sentence to vacate, 

set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The district 

court denied § 2255 relief and this court dismissed Echeverry’s appeal 

as untimely. 

In 2019, Echeverry, proceeding pro se, filed a motion requesting 

the reduction of his sentence under the First Step Act. In an order 

dated July 2, 2019, the district court denied relief on the ground that,

“[b]ecause Mr. Echeverry pleaded guilty to conspiracy to distribute 

cocaine and heroin in quantities that required the imposition of a 10 

year mandatory minimum sentence,” Echeverry’s sentence could not 

have been lower if the Fair Sentencing Act had been in effect.

Echeverry timely appealed. 

II

In 2010, “President Obama signed into law the Fair Sentencing 

Act of 2010.” United States v. Johnson, 961 F.3d 181, 183 (2d Cir. 2020).

The Fair Sentencing Act “increased from 50 to 280 grams the amount 

of crack cocaine necessary to trigger” the mandatory minimum 
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provided by 21 U.S.C. § 841. Id. But the Fair Sentencing Act did not 

apply to sentences imposed before its enactment. In 2018, President 

Trump signed into law the First Step Act. In relevant part, the First 

Step Act provides that “[a] court that imposed a sentence for a 

covered offense may, on motion of the defendant ... impose a reduced 

sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in 

effect at the time the covered offense was committed.” First Step Act 

of 2018 § 404, Pub. L. No. 115-391, 132 Stat. 5194, 5222. The statute 

defines the term “covered offense” to mean “a violation of a Federal 

criminal statute, the statutory penalties for which were modified by 

section 2 or 3 of the Fair Sentencing Act ... that was committed before 

August 3, 2010.” Id. Echeverry’s position is that, because he was 

charged with the possession and distribution of crack cocaine, the 

penalties for which were altered by the Fair Sentencing Act, the 

district court had the power to reduce his sentence. 

The First Step Act permits a district court to reduce a sentence 

only to the extent that the sentence could have been lower “if sections 

2 and 3 of the Fair Sentencing Act ... were in effect at the time the 

covered offense was committed.” Because count one of the 

superseding information charged two non-crack-cocaine offenses that 

each carried a mandatory minimum sentence of 120 months’ 

imprisonment, Echeverry is ineligible for First Step Act relief. See 

United States v. Jones, 962 F.3d 1290, 1303 (11th Cir. 2020) (“If the 

movant’s sentence would have necessarily remained the same had the 

Fair Sentencing Act been in effect, then the district court lacks the 

authority to reduce the movant’s sentence.”).

Count one of the superseding information charged three 

controlled substance offenses, each of which constituted a violation of 
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21 U.S.C. § 841. That statute provides that “it shall be unlawful for any 

person knowingly or intentionally to manufacture, distribute, or 

dispense, or possess with intent to manufacture, distribute, or 

dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Section 841 

sets out mandatory minimums that are triggered when the 

defendant’s violation of § 841(a)(1) involves specified quantities of 

controlled substances. As relevant here, the statute provides that a 

defendant whose “violation of subsection (a)” involves “1 kilogram 

or more of a mixture or substance containing a detectable amount of 

heroin” shall “be sentenced to a term of imprisonment which may not 

be less than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A)(i). 

Similarly, a defendant whose crime involves “5 kilograms or more of 

a mixture or substance containing a detectable amount of ... cocaine” 

shall also be sentenced to a minimum mandatory term of 10 years 

imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii)(II). Because count one

charged a conspiracy to distribute and possess with intent to 

distribute “five or more kilograms of cocaine” and “one or more 

kilograms of heroin,” count one carried a mandatory minimum of 120 

months imprisonment even without the inclusion of Echeverry’s 

crack-cocaine offense. Because Echeverry’s sentence could not have 

been lower even if “sections 2 and 3 of the Fair Sentencing Act ... were 

in effect at the time the covered offense was committed,” the district 

court correctly concluded that it lacked the authority to reduce 

Echeverry’s sentence. 

For the foregoing reasons, we AFFIRM the judgment of the 

district court.