16-176 United States v. Areizaga-Rosa

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 1 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 2 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 3 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 4 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 5 NOTATION “SUMMARY ORDER”). A PARTY CI TING TO A SUMMARY ORDER MUST SERVE A 6 COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 7

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 8 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 9 on the 15 th day of February, two thousand seventeen. 10 11 PRESENT: 12 G UIDO C ALABRESI , 13 S USAN L. C ARNEY , 14 Circuit Judges
, 15 J OHN G. K OELTL , 16 District Judge

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_____________ _______________ _____________ 18 19 U NITED S TATES OF A MERICA , 20 21 Appellee
, 22 23 v. No. 16-176 24 25 V ICTOR A NGUIERA , AKA P ITO , V ICTOR M ONGE , AKA 26 P EE W EE , B ORIS A GUAYO -M ATOS , AKA B ORI , AKA 27 M IKEY , AKA B ORIS , J OSE A LTRECHE , J ESUS T RINIDAD

28 R IVERA , J ONATHAN C RUZ -H ERNANDEZ , AKA J AYSON 29 R ODRIGUEZ -I RIZARRY , R ICARDO O RTIZ -R OSA , 30 31 Defendants
, 32 33

 Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.2 N ELSON A REIZAGA -R OSA , 1 2 Defendant-Appellant

. 3 4

_____________ _______________ _____________ 5 6 FOR APPELLANT: M ARIANNE M ARIANO , Federal Public 7 Defender’s Office for the Western District 8 of New York, Buffalo, NY. 9 10 FOR APPELLEE: J OSEPH J. K ARASZEWSKI , Assistant United 11 States Attorney, for William J. Hochul, Jr., 12 United States Attorney for the Western 13 District of New York, Buffalo NY. 14 15 Appeal from an order of the United States District Court for the Western District of 16 New York (Skretny, J. ). 17
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 18 ADJUDGED, AND DECREED that the District Court’s or ders of Octobe r 28, 2015, and 19 January 12, 2016, are VACATED and the case is REMANDED for reconsideration. 20 In 2013, Defendant-Appellant Nelson Ar eizaga-Rosa pleaded guilty pursuant to 21 Federal Rule of Criminal Procedure 11(c)(1)(C ) to conspiring to possess with intent to 22 distribute 500 grams or more of cocaine. He was sentenced to 180 months’ imprisonment. 23 Rule 11(c)(1)(C) permits the government and a defendant to “agree th at a specific sentence 24 or sentencing range is the appropriate dispositi on of the case.” Fed. R. Crim. P. 11(c)(1)(C). 25 The rule “binds the court [to the agreed-u pon sentence] once [it] accepts the plea 26 agreement.” Id. 27 In 2014, Areizaga-Rosa moved pursuant to 18 U.S.C. § 3582(c)(2) for a sentence 28 reduction with respect to his 2013 sentence in light of Amendment 782 to the United States 29 Sentencing Guidelines (the “Gui delines”), which lowered the Guid elines range applicable to 30 his offense. In October 2015, the District Cour t denied his motion, and in January 2016, the 31
court denied his further motion for reconsider ation. The court found that Areizaga-Rosa 32 was ineligible for a sentence reduction, reasoni ng that his Rule 11(c)(1)(C) sentence did not 33 satisfy the requirement of § 3582(c)(2) that his sentence have been “based on” the 343 Guidelines. App. 239 (citing 18 U.S.C. § 3582(c)(2)). Areizaga-Rosa now appeals these 1 rulings. We assume the parties’ familiarity wi th the underlying facts and the procedural 2 history of this case, to which we refe r only as necessary to explain our decision. 3 Section 3582(c)(2) of title 18 allows a di strict court to reduce the sentence “of a 4
defendant who has been sentenced to a term of imprisonment based on a sentencing range 5 that has subsequently been lowered by the Se ntencing Commission.” 18 U.S.C. § 3582(c)(2). 6
In Freeman v. United States , 564 U.S. 522 (2011), the Supreme Court, determined in a split 7 decision, that at least some sentences im posed under Rule 11(c)(1)(C) agreements are 8 properly viewed as “based on” th e Guidelines and thus are elig ible for § 3582(c)(2) sentence 9 reductions. As we recently discussed in United States v. Leonard , 844 F.3d 102 (2d Cir. 2016), 10 however, no single rationale for the holding w as adopted by a majority of the Justices. Id. at 11
107–09. In Leonard , we found no need to decide whether the reasoning of either the plurality 12 opinion (written by Justice Kennedy) or concu rrence (by Justice Sotomayor) dictated the 13 proper analysis: because the defendant’s sentence in Leonard could be viewed as “‘based on’ 14 the Sentencing Guidelines under the reasoning of either the plurality or the concurrence,” 15 his sentence was eligible for a reduction. Id. at 109 (quoting 18 U.S. C. § 3582(c)(2)). 16 We think Areizaga-Rosa’s sentence similarly satisfies the standards set out in both the 17 plurality and concurrence. The Freeman plurality concluded that sentences imposed pursuant 18 to Rule 11(c)(1)(C) are “based on” the Guidelines whenever “the judge uses the sentencing 19 range as the beginning point to explain the [sen tence].” 564 U.S. at 529 (plurality opinion). 20 This is surely true here, where the sentencing colloquy reflected that the District Court 21 calculated the Guidelines range and then sentenced Areizaga-Rosa to a term of 22 imprisonment within that range—a term that coincided with the sentence proposed in the 23 plea agreement. The concurrence, in contrast, reasoned that a sentence imposed under Rule 24 11(c)(1)(C) is “based on” the Guidelines so long as the parties’ plea agreement “make[s] clear 25 that the basis for [its] specified term [of im prisonment] is a Guidelines sentencing range 26 applicable to the offense to wh ich the defendant pleaded guilty.” Id. at 539 (Sotomayor, J ., 27 concurring). The District Court here, looking to the concurrence as the controlling, narrower 28 approach, held that Areizaga-Rosa’s plea agreeme nt was insufficiently cl ear in this regard. 294 We disagree. Areizaga-Rosa’s plea agreement cont ained a detailed Guidel ines calculation and 1 proposed a sentence within one of the Guidelines ranges se t out in the agreement. The 2 District Court imposed a sentence within one of those ranges and at the level proposed by 3 the parties. We think this sentence is also su fficiently “based on” the Guidelines to satisfy 4
the concurrence’s standard. 5 The government argues primarily that th e plea agreement’s identification of two 6 different sentencing ranges and its use of the phrase “notwithstanding the above 7 calculations” before reciting the parties’ agr eed upon sentence establishes that the basis for 8 the agreement’s proposed sentence was not th e Guidelines. App. 75–76. We are not 9 persuaded, however, that these features of the agreement are dispositive when weighed 10 against the agreement’s extensive attention to the potentially applicable Guidelines ranges, its 11 careful calculation of those ranges, and its se lection of a term of imprisonment within one 12 such range—elements that we find more compe lling. In our view, therefore, the sentence is 13 fairly read as “based on” the Guidelines unde r the concurrence’s analysis as well as the 14 plurality’s. See Freeman , 564 U.S. at 529 (plurality opinion); id. at 539 (Sotomayor, J ., 15 concurring). 16

Because the District Court erred in concludi ng that Areizaga-Rosa’s Rule 11(c)(1)(C) 17 sentence was ineligible for a reduction under § 3582(c)(2), we vacate the District Court’s 18
orders and remand for reconsideration of Ar eizaga-Rosa’s motion for such a reduction. 19

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For these reasons, the orders of the District Court are VACATED and the case is 21
REMANDED for further proceedings consis tent with this order. 22

FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk of Court 24