19

- 2202

- cr United States v. Echeverry 

# In the **United States Court of Appeals**
FOR THE SECOND CIRCUIT

A UGUST T ERM 20 20 No. 19

- 2202

- cr

U NITED S TATES OF A MERICA , Appellee
,

v.

C ARLOS E CHEVERRY , Defendant

- Appellant

.

On Appeal from the United States District Court for the Southern District of New York

S UBMITTED : O CTOBER 14, 2020

D ECIDED : O CTOBER 28. 2020

Before : W A LKER AND M ENASHI , 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).2 (Woods, J.) denying relief under the First Step Act. Echeverry argues that, because he pleaded guilty to an offense

— conspiracy to
distribut e, 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 authori ty 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 cou ld 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.

P ER C URIAM : Appellant Carlos Echeverry challenges a decision of the U.S. District Court for the Southern District of New York (Woods, J.)3 denying Echeverry’s motion to reduce his sentence of 120 months’ imprisonment under the First Step Act. Under the Act, a d efendant 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 mi nimum 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

— bo th 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 a n 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 involvemen t 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 two

count 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 a4 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 p ossession and sale of a
controlled substance in the State of New Y ork. In 2010, the district
court sentenced Echever r y to a term of 240 months’ imprisonment

— 120 months for each count of the information

— and a term of five years’ supervised release. This cou rt 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 se n tence of a court established by Act of Congress ” to “ move the c ourt 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 Echever r y’s appeal as untimely.
In 2019, Echeverry, proceeding pro se, filed a motion req uesting the reduction of his sentence under the First Step Ac t

. 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 Fai r 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 minimum5 provided by 21 U.S.C. § 841. Id

. But the Fair Sentencing Act did not apply to sentences imposed before its enactment. In 201 8 , 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 mo tion 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, 5 222. 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 posit ion is that, because he was charged with the possession and distribution of crack cocain e, t he 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 cour t to reduce a sentence only to the extent that th e 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 c onstituted a violation of6 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 subs tance.” 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) involve s 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 o r 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 o r 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 c ount 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,” c ount one carried a mandatory minimum of 120 months imprisonment even without the inclus ion 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 th at it lacked the authority to reduce Echeverry’s sentence.
For the foregoing reasons, we AFFIRM the judgment of the
district court.