11

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United States v. Rios



## In the



# United States Court of Appeals

**For the Second Circuit**

________

A UGUST T ERM

, 2013

A RGUED : A PRIL 29, 2014

D ECIDED : S EPTEMBER 2, 2014

A MENDED : S EPTEMBER 8, 2014

No. 11

‐ 2624

‐ cr, 12

‐ 209

‐ cr, 12

‐ 303

‐ cr, 12

‐ 310

‐ cr, 13

‐ 1792

‐ cr *

U NITED S TATES OF A MERICA

, Appellee,

v.

R AUL R IOS

, M IGUEL B AUTISTA AKA T ITA

, Defendants

‐ Appellants.

________

Appeal from the United States District Court

for the Southern District of New York.

No. 00 Cr. 579

– Jed S. Rakoff, Judge

.

________

Before: W ALKER

, P OOLER

, and W ESLEY

, Circuit Judges

.

________

* Appeal number 11

‐ 2624 was dismissed by order on January 23, 2013.

Appeal number 12

‐ 209 was remanded by order on January 15, 2013.11

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2 Defendants Raul Rios and Miguel Bautista pleaded guilty to

one count of conspiracy to distribute and possess with intent to

distribute cocaine base. Following sentencing by the district court

(Rakoff, J. ), each defendant twice moved pursuant to 18 U.S.C. §

3582(c)(2) for a reduced sentence in light of amendments made in

2007 and 2011 to the Sentencing Guidelines that lowered the base

offense levels applicable to crimes involving certain quantities of

cocaine base. After holding an evidentiary hearing as to Rios’s first

motion, at which Bautista was neither present nor represented, the

district court denied each defendant’s motions. Both defendants

appealed, raising substantially similar but not identical arguments.

We hold that the district court appropriately held an evidentiary

hearing, did not clearly err in making a drug quantity finding that

supported not reducing the sentences, properly denied Bautista’s

motion for a reduced sentence, and did not violate Bautista’s

constitutional rights. Accordingly, we AFFIRM.

________

R OBERT A. C ULP

, Garrison, N.Y., for

Defendant

‐ Appellant Miguel Bautista

.

L AURIE S. H ERSHEY

, Manhasset, N.Y., on the

brief

, for Defendant

‐ Appellant Raul Rios

.11

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3 C HRISTOPHER J. D I M ASE (Timothy D. Sini,

Brent S. Wible, on the brief ), Assistant

United States Attorney, for Preet Bharara,

United States Attorney, United States

Attorney’s Office for the Southern District

of New York, New York, N.Y., for Appellee

.

________

J OHN M. W ALKER

, J R

., Circuit Judge :

Defendants Raul Rios and Miguel Bautista pleaded guilty to

one count of conspiracy to distribute and possess with intent to

distribute cocaine base. Following sentencing by the district court

(Rakoff, J. ), each defendant twice moved pursuant to 18 U.S.C.

§ 3582(c)(2) for a reduced sentence in light of amendments made in

2007 and 2011 to the Sentencing Guidelines that lowered the base

offense levels applicable to crimes involving certain quantities of

cocaine base. After holding an evidentiary hearing as to Rios’s first

motion, at which Bautista was neither present nor represented, the

district court denied each defendant’s motions. Both defendants

appealed, raising substantially similar but not identical arguments.

We hold that the district court appropriately held an evidentiary

hearing, did not clearly err in making a drug quantity finding that

supported not reducing the sentences, properly denied Bautista’s11

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4 motion for a reduced sentence, and did not violate Bautista’s

constitutional rights. Accordingly, we AFFIRM.

BACKGROUND

I. The Plea Agreement and Sentencing

On November 21, 2000, Raul Rios and Miguel Bautista

separately each pleaded guilty to one count of conspiracy to

distribute and possess with intent to distribute cocaine base (“crack

cocaine” or “crack”). In their plea agreements, both stipulated to

being responsible for “1.5 kilograms or more of” crack. Absent

relevant statutory maximums, Rios’s Guidelines range was 262 to

327 months’ imprisonment and Bautista’s was 360 months’ to life

imprisonment. Because of a twenty year statutory maximum,

however, the defendants stipulated to Guidelines sentences of 240

months’ imprisonment.

The Presentence Report (“PSR”) prepared by the Probation

Department for each defendant determined the same Guidelines

ranges as the plea agreements. Each defendant’s PSR calculated the

defendant’s base offense level on the basis that the Offense Conduct

section of the PSR stated that “the defendant’s criminal activity

involved

. . . five kilograms of crack.” This statement was erroneous

as to each defendant, however, because the Offense Conduct11

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5 sections did not specify the quantity of crack involved in the

defendants’ crimes.

In 2001, the district judge sentenced each defendant in

separate proceedings to 240 months’ imprisonment. As to each

defendant, the written Statement of Reasons in the judgment

“adopt[ed] the factual finding and guideline application in the

presentence report.”

II. Defendants’ Motions for Sentence Reduction

A. 2007 Amendments to the Sentencing Guidelines

In 2007, the United States Sentencing Commission

promulgated amendments to the Guidelines that reduced by two

points the base offense level for every crack offense. Amendments

to the Sentencing Guidelines for the United States Courts, 72 Fed.

Reg. 28571

‐ 28572 (2007) (cited in Kimbrough v. United States

, 552 U.S.

85, 100 (2007)). A district judge is permitted by statute to reduce a

term of incarceration “in the case of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range

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

In December 2007, Bautista moved for a sentence reduction

under 18 U.S.C. § 3582(c)(2) in light of the 2007 amendments. On

February 20, 2008, the district judge denied this motion, finding that,11

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6 because of the quantity of drugs involved, Bautista’s Guidelines

range was not lowered by the 2007 amendments. United States v.

Rios

, No. 00

‐ cr

‐ 579, ECF No. 120, at 1

‐ 2 (S.D.N.Y. Feb. 20, 2008).

On November 26, 2007, Rios filed a motion for sentence

reduction under 18 U.S.C. § 3582(c)(2) in light of the 2007

amendments. On August 12, 2010, the district judge held an

evidentiary hearing on the Rios motion at which FBI Special Agent

Carlos Mojica testified and was cross

‐ examined by Rios’s counsel.

Bautista was neither present nor represented at the hearing.

Following the hearing, the district judge denied Rios’s motion from

the bench, finding that the conspiracy of which he was a part was

responsible for “not only 4.5 kilograms of crack cocaine but

considerably more than that.” Rios App. A87.

B. 2011 Amendments to the Sentencing Guidelines

In 2011, the Sentencing Commission amended the Guidelines

to further reduce the base offense levels applicable to crack offenses.

See United States v. Johnson

, 732 F.3d 109, 112 (2d Cir. 2013). As

relevant here, prior to the 2011 amendments, distribution of 4.5 or

more kilograms of crack resulted in a base offense level of 38.

U.S.S.G. § 2D1.1(c)(1) (2009). After the amendments, the base

offense levels for crack distribution were as follows: 34 for less than11

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7 2.8 kilograms, 36 for 2.8 to 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 a second motion for

sentence reduction, based on the 2011 amendments to the crack

Guidelines. A Supplemental PSR, with which Bautista’s counsel

agreed, determined that Bautista’s new base offense level was 36

based on his offense involving “about” five kilograms of crack,

resulting in a Guidelines range of 292 to 365 months. The district

court denied the motion because the original sentence of 240 months

was less than the amended Guidelines range. United States v. Rios

,

No. 00

‐ cr

‐ 579, ECF No. 178, at 1

‐ 2 (S.D.N.Y. Dec. 13, 2011).

Bautista then unsuccessfully moved for reconsideration. The

district court explained that Bautista’s Supplemental PSR found that

his offense conduct involved the distribution of about five kilograms

of crack, resulting in a base offense level of 36. United States v. Rios

,

No. 00

‐ cr

‐ 579, ECF No. 181, at 1 (S.D.N.Y. Jan. 9, 2012). The district

court then noted that it recently concluded that Rios’s conspiracy

involved the distribution of more than 8.4 kilograms of crack and

that “Rios and Bautista were the co

‐ leaders of a drug distribution

organization.” Id. The district judge “conclude[d] that Bautista was

responsible for the distribution of the same amount of crack cocaine11

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8 as Rios, if not more.” Id

. at 2. The district court thereupon

reaffirmed “its earlier conclusion that the correct base offense level

was 36, if not higher.” Id

.

On November 9, 2011, Rios filed his second motion for

sentence reduction, this time in light of amendments to the crack

Guidelines in 2011, arguing that his crime involved less than 8.4

kilograms of crack. On January 9, 2012, the district court denied this

motion, finding that Rios’s base offense level was 38. It stated that,

based on the previous evidentiary hearing, it “now makes explicit its

earlier implicit finding: the conspiracy to which Rios pled guilty

involved the distribution of more than 8.4kg of crack cocaine.”

United States v. Rios

, No. 00

‐ cr

‐ 579, ECF No. 182, at 3

‐ 4 (S.D.N.Y. Jan.

9, 2012). The district judge also noted that this finding applies to

both Rios and Bautista as leaders of the drug organization. Id

. at 4

n.1.

Rios appealed to this court, but on a motion by the

government acknowledging the district court’s seeming reliance on

the PSR’s reference to about five kilograms, we remanded the case to

the district court to reconsider Rios’s motion. United States v. Rios

,

No. 11

‐ 2624, ECF No. 181 (2d Cir. Jan. 15, 2013). On March 15, 2013,

the district court again denied Rios’s motion, finding that Rios’s PSR11

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9 was inaccurate when it stated that “the defendant’s criminal activity

involved

. . . about five kilograms of crack” because nothing in the

Offense Conduct section or any other section indicated such a

factual finding. United States v. Rios

, No. 00

‐ cr

‐ 579, ECF No. 196, at 3

(S.D.N.Y. Mar. 15, 2013). The district judge described the PSR’s

statement of about five kilograms as a “mistaken cross

‐ reference,

unsupported by any facts or evidence, that, being nonsubstantive,

the Court saw no need to correct” at sentencing. Id

. at 5. The district

judge held that the record from the evidentiary hearing “shows that

Rios’s offense involved far more than the 8.4 kilogram threshold for

resentencing under the current Guidelines.” Id

. at 5.

Both Rios and Bautista appeal from the denial of their motions

for sentence reduction.

DISCUSSION

“[W]e review a district court’s decision to deny a motion [for

sentence reduction] under 18 U.S.C. § 3582(c)(2) for abuse of

discretion.” United States v. Borden

, 564 F.3d 100, 104 (2d Cir. 2009).

“[A] district court has abused its discretion if it based its ruling on

an erroneous view of the law or on a clearly erroneous assessment of

the evidence, or rendered a decision that cannot be located within

the range of permissible decisions.” Id

.11

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10 I. Appropriateness of an Evidentiary Hearing

Rios and Bautista argue that the district court lacked authority

under 18 U.S.C. § 3582(c)(2) to hold an evidentiary hearing to

determine the quantity of crack involved in the conspiracy because

the district court was bound by the plea agreement, which they

contend stipulated to 1.5 kilograms of crack as the distribution

amount. Rios additionally argues that the PSR, as adopted by the

district court, found that he was guilty of conspiring to distribute

five kilograms of crack, which precluded the district court from

finding a higher quantity at the evidentiary hearing. †

A district court considering a motion for sentence reduction

under § 3582(c)(2) must

begin by ”determin[ing] the amended guideline range

that would have been applicable to the defendant” had

the relevant amendment been in effect at the time of the

initial sentencing. ”In making such determination, the

court shall substitute only the amendments

. . . for the

corresponding guideline provisions that were applied

when the defendant was sentenced and shall leave all

other guideline application decisions unaffected.”

Dillon v. United States

, 560 U.S. 817, 827 (2010) (alterations in

original) (quoting U.S.S.G. § 1B1.10(b)(1)).

† Bautista does not join in this argument, presumably because Bautista is

entitled to relief under the amended Guidelines only if the quantity of

crack is found to be less than 2.8 kilograms, whereas Rios may obtain

relief if the quantity is found to be less than 8.4 kilograms.11

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11 In doing so, “district courts in § 3582(c)(2) proceedings cannot

make findings inconsistent with that of the original sentencing

court.” United States v. Woods

, 581 F.3d 531, 538 (7th Cir. 2009); see

also United States v. Adams

, 104 F.3d 1028, 1031 (8th Cir. 1997)

(holding that it is implicit in a § 3582(c)(2) proceeding that the

“district court is to leave all of its previous factual decisions intact”).

But “[n]othing prevents a district court from making new findings of

fact when ruling on a § 3582(c)(2) motion, so long as those findings

are not inconsistent with those made at the original sentencing.”

United States v. Davis

, 682 F.3d 596, 612 (7th Cir. 2012). “Indeed, new

findings are often necessary where, as here, retroactive amendments

have altered the relevant drug

‐ quantity thresholds for determining a

defendant’s base offense level.” Id

. The district court thus has

“broad discretion in how to adjudicate § 3582(c)(2) proceeding[s],”

Woods

, 581 F.3d at 539, including whether to hold an evidentiary

hearing.

There were no inconsistent findings here because nothing in

the original sentencing record conclusively found the quantity of

crack attributable to the defendants. Each defendant’s plea

agreement stipulated that the conspiracy involved “1.5 kilograms or

more of” crack. Rios App. A14 (emphasis added); Bautista App. A1411

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12 (emphasis added). And while the PSR for each defendant stated

that “[a]ccording to the Offense Conduct section, the defendant’s

criminal activity involved the possession with the intent to distribute

and distribution of about five kilograms of crack,” the district judge,

in considering Rios’s motion for sentence reduction, correctly

recognized that the PSR’s “reference to ‘about five kilograms of

crack’ was” “mistaken” and “unsupported by any facts or

evidence.” United States v. Rios

, No. 00

‐ cr

‐ 579, ECF No. 196, at 5

(S.D.N.Y. Mar. 15, 2013).

The record at sentencing thus did not establish the quantity of

crack at issue beyond the plea agreements’ stipulation that it was at

least 1.5 kilograms. Accordingly, the district judge’s ultimate

finding of a quantity of crack attributable to each defendant in

excess of 8.4 kilograms was not inconsistent with any findings made

at the original sentencing.

Moreover, it was proper for the district court to make its

ultimate findings after an evidentiary hearing. Indeed, it would not

have been possible to apply the amended Guidelines without

making such a quantity finding.11

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13 II. Drug Quantity Findings by the District Court at the

Evidentiary Hearing

The district court denied Rios’s motion for sentence reduction

by finding that “the record from the [evidentiary] hearing shows

that Rios’s offense involved far more than the 8.4 kilogram threshold

for resentencing.” United States v. Rios

, No. 00

‐ cr

‐ 579, ECF No. 196,

at 5 (S.D.N.Y. Mar. 15, 2013). The district court relied on the same

evidentiary hearing to deny Bautista’s motion for reconsideration

and to find that Bautista was “responsible for the same amount of

crack cocaine as Rios, if not more.” United States v. Rios

, No. 00

‐ cr

‐

579, ECF No. 181, at 3 (S.D.N.Y. Jan. 9, 2012). The defendants argue

that the evidence presented at the evidentiary hearing was

insufficient to support the district judge’s findings.

“When addressing a claim that there was insufficient evidence

to support a district court’s drug quantity finding, we are mindful

that the district court has broad discretion to consider all relevant

information, and the quantity determination will not be disturbed

unless it is clearly erroneous.” United States v. Richards

, 302 F.3d 58,

70 (2d Cir. 2002) (internal quotation marks omitted). “A finding is

clearly erroneous when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” United States v.11

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14 Guang

, 511 F.3d 110, 122 (2d Cir. 2007) (internal quotation marks

omitted).

FBI Special Agent Carlos Mujica, the lead case agent in the

investigation of Rios and Bautista, was the only witness to testify at

the evidentiary hearing. His testimony, credited by the district

court, established that Rios’s and Bautista’s organization received

shipments of between twenty

‐ five and fifty kilograms of powder

cocaine about every two weeks; that at the time it was raided it

possessed at least 1.5 kilograms of crack; that it had the chemicals to

convert powder cocaine into crack cocaine; and that it regularly did

so. Mujica testified that, based on this evidence, he believed that the

organization sold approximately three kilograms of crack every

month. Rios and Bautista admitted to being part of the conspiracy

for five months, from December 1999 to May 2000.

The government’s factual burden at sentencing is a showing

by a preponderance of the evidence, not beyond a reasonable doubt.

United States v. Thorn

, 317 F.3d 107, 117 (2d Cir. 2003) (“[f]acts relied

on in sentencing need be established by a preponderance of the

evidence”). Under this standard and based on Special Agent

Mujica’s testimony, the district court’s drug quantity determinations

as to Rios and Bautista were not clearly erroneous.11

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15 III. Bautista’s Guidelines Range

Bautista argues that he is entitled to a reduced sentence

because his new amended Guidelines range is lower than his

original Guidelines range based on a later finding that he conspired

to distribute five kilograms of crack notwithstanding that the low

end of both ranges exceed the 240 month statutory cap. Bautista’s

original Guidelines range was 360 months’ to life and his amended

Guidelines range based on a five kilogram finding was 292 to 365

months’. Both ranges were subject to the 240 month cap by U.S.S.G.

§ 5G1.1(a), which states that where a calculated Guidelines range is

above the statutory maximum, “the statutorily authorized maximum

sentence shall be the guideline sentence.” Bautista argues, however,

that his sentence should be reduced under 18 U.S.C. § 3582(c)(2),

which authorizes sentence modifications when ranges are reduced

and makes no mention of a statutory maximum or cap, because

there is a reduction as between the two ranges. His apparent hope is

that he will be able to convince the district court to reduce his

sentence below the statutory cap.

We need not decide this issue because even if his argument is

correct, Bautista is still ineligible for a reduced sentence. In

considering a motion for a reduced sentence, a district court “shall11

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16 not reduce the defendant’s term of imprisonment

. . . to a term that is

less than the minimum of the amended guideline range” unless the

government moved at the original sentencing for a downward

departure based on the defendant’s substantial assistance. U.S.S.G.

§ 1B1.10(b)(2). Bautista’s amended Guidelines range, assuming a

five kilogram quantity finding, is 292 to 365 months’ and the

government did not move for a substantial assistance downward

departure at Bautista’s original sentencing. Bautista’s amended

Guideline minimum absent the statutory maximum was thus fixed

at 292 months’. Because Bautista was sentenced to 240 months’

imprisonment, lower than the amended range, he is ineligible for a

reduction under 18 U.S.C. § 3582(c)(2).

IV. Bautista’s Right to be Represented at Rios’s Evidentiary

Hearing

Bautista argues that his due process rights were violated

because the district judge denied his motion for sentence reduction

based on evidence adduced at Rios’s evidentiary hearing, at which

Bautista was neither present nor represented. The precise contours

of a defendant’s constitutional rights in a sentence reduction

proceeding are not well

‐ defined. See, e.g.

, Dillon v. United States

, 560

U.S. 817, 828 (2010) (stating that “proceedings under § 3582(c)(2) do

not implicate the Sixth Amendment right to have essential facts11

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17 found by a jury beyond a reasonable doubt”); United States v.

Townsend

, 55 F.3d 168, 172 (5th Cir. 1995) (holding that “under §

3582(c)(2), a court may consider the testimony from other

proceedings,” but “a defendant must have notice that the court is

considering the testimony such that he will have the opportunity to

respond to that testimony”).

We need not decide whether the district court violated the due

process notice requirement, however, because the district judge

articulated a sufficient basis for denying Bautista’s motion for

reconsideration independent of the evidence adduced at Rios’s

evidentiary hearing. In denying Bautista’s second motion for

sentence reduction, the district judge explained that Bautista’s

supplemental PSR concluded that his offense “involved about 5

kilograms of crack,” making him ineligible for a reduced sentence.

United States v. Rios

, No. 00

‐ cr

‐ 579, ECF No. 178, at 1

‐ 2 (S.D.N.Y. Dec.

13, 2011). Bautista’s then

‐ counsel, the Federal Defenders of New

York, agreed with the supplemental PSR’s calculations and

conclusions. Id

.

In denying Bautista’s motion for reconsideration, the district

judge again explained that, even according to the supplemental PSR,

Bautista’s offense conduct involved the distribution of about five11

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18 kilograms of crack and that both the government and Bautista’s

counsel agreed with the calculations. United States v. Rios

, No. 00

‐ cr

‐

579, ECF No. 181, at 1

‐ 2 (S.D.N.Y. Jan. 9, 2012). The district court

acknowledged that it found that Rios was responsible for more than

8.4 kilograms of crack based on the evidentiary hearing. It then

stated, “Rios and Bautista were the co

‐ leaders of a drug distribution

organization, and the Court concludes that Bautista was responsible

for the distribution of the same amount of crack cocaine as Rios, if

not more.” Id

. at 2. “The Court hereby denies Bautista’s motion for

reconsideration because it reaffirms its earlier conclusion that the

correct Base Offense Level was 36, if not higher.” Id

. The district

judge explained that level 36 is for offenses involving more than 2.8

but less than 8.4 kilograms of crack. Id

. at 2 n.2.

Had the district court relied on the Rios hearing in denying

Bautista’s motion, it would have found that Bautista’s base offense

level was 38 for an offense involving more than 8.4 kilograms. The

district court instead explicitly reaffirmed its earlier finding—relying

on an agreement between the government and Bautista’s counsel—

that Bautista’s correct level was 36 based on the five kilograms. The

district court thus denied Bautista’s motion based on reasons11

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19 independent of the evidence from Rios’s evidentiary hearing.

Accordingly, Bautista’s due process argument is without merit.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s

denials of defendants’ motions for sentence reduction.