NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4389

_____________

UNITED STATES OF AMERICA

v.

ADALBERTO VASQUEZ-LIRIANO,

 Appellant 

_____________

On Appeal from the District 

of the Virgin Islands

District Court No. 3-12-cr-00028-001

District Judge: The Honorable Curtis V. Gómez

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 11, 2017

Before: SMITH, Chief Judge, McKEE, and SCIRICA, Circuit Judges

(Filed: January 16, 2018)

_____________________

OPINION*

_____________________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.

SMITH, Chief Judge
2

Adalberto Vasquez-Liriano pleaded guilty in 2013 in the District Court of the 

Virgin Islands to possession with intent to distribute five kilograms or more of cocaine 

hydrochloride. He was sentenced to 120 months of imprisonment, followed by 60 months 

of supervised release—the mandatory minimum sentence for his crime of conviction. 21 

U.S.C. § 841(b)(1)(A). In 2014, and again in 2016, Vasquez-Liriano moved to reduce his 

sentence, arguing that Amendment 782 to the U.S. Sentencing Guidelines made him 

eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). In December 2016, the 

District Court denied both motions. Vasquez-Liriano timely appealed the denial of his 

motions. We will affirm.1

I.

Vasquez-Liriano argues he is eligible for a reduced sentence under 18 U.S.C. 

§ 3582(c)(2), which provides that a court

may . . . [reduce] a term of imprisonment once it has been imposed . . . 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 by the 

Sentencing Commission . . . if such a reduction is consistent with 

applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

A sentence is not “based on a sentencing range that has subsequently been 

lowered” if the relevant change to the Sentencing Guidelines “does not have the effect of 

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a). 

We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s 

legal interpretation of the Sentencing Guidelines and relevant statutes de novo; we review 

the District Court’s ultimate ruling on a motion to reduce a sentence under 18 U.S.C. 

§ 3852(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 & n.2 (3d 

Cir. 2009).
3

lowering the defendant’s applicable guideline range because of the operation of another 

guideline or statutory provision (e.g., a statutory mandatory minimum term of 

imprisonment).” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10 cmt. n.1(a); 

United States v. Ortiz-Vega, 744 F.3d 869, 873 (3d Cir. 2014) (“[I]f a defendant is 

subjected to a mandatory minimum, he or she would not be given a sentence ‘based on a 

sentencing range that has subsequently been lowered.’”).

Vasquez-Liriano’s sentence was based on a mandatory minimum sentence 

established by 21 U.S.C. § 841(b)(1)(A), not on a guideline range subsequently affected 

by Amendment 782. Had Vasquez-Liriano been sentenced after Amendment 782 went 

into effect, his sentence would have been unchanged.

2 The mandatory minimum sentence 

of 120 months’ imprisonment exceeds both the pre-Amendment guideline range of 87 to 

108 months’ imprisonment, App. at 32, and the post-Amendment guideline range of 70 to 

87 months’ imprisonment. See U.S.S.G. app. C, amend. 782 (applying a two-level 

reduction to base offense level for certain drug offenses); U.S.S.G. Sentencing Table 

(2012). Because Vasquez-Liriano’s mandatory minimum sentence exceeded both the preand post-Amendment guideline ranges, the mandatory minimum sentence would become

the guideline sentence in either case. U.S.S.G. § 5G1.1(b) (“Where a statutorily required 

minimum sentence is greater than the maximum of the applicable guideline range, the 

statutorily required minimum sentence shall be the guideline sentence.”). VasquezLiriano was sentenced based on a required minimum sentence, not a guideline range
4

subsequently lowered by the Sentencing Commission, and he is not eligible for a 

reduction in his sentence.

3

II.

Vasquez-Liriano also argues, for the first time on appeal, that he might qualify for 

the “safety valve” of 18 U.S.C. § 3553(f), which would excuse him from the application 

of the mandatory minimum sentence. Not only has Vasquez-Liriano never argued that the 

safety valve applied to his case, he conceded at his sentencing hearing that it did not 

apply. Counsel acknowledged that the safety valve did not apply, and that the mandatory 

minimum sentence of ten years’ imprisonment controlled the sentencing range. App. at 

29–31.

By explicitly waiving this argument at his sentencing hearing, Vasquez-Liriano is 

foreclosed from making it now. See United States v. Batista, 483 F.3d 193, 199 n.4 (3d 

Cir. 2007).

III.

We will affirm the District Court’s order denying Vasquez-Liriano’s motions to 

reduce his sentence.

 

2 Vasquez-Liriano argues that the application of the “safety valve” provided by 18 U.S.C. 

§ 3553(f), in combination with Amendment 782, could result in a reduced sentence below 

the mandatory minimum. As we discuss below, the safety valve does not apply.

3 Vasquez-Liriano argues that, because the District Court did not make an explicit finding 

under § 5G1.1(b) that the mandatory minimum sentence was the guideline sentence, the 

District Court did not sentence him based on the mandatory minimum, but instead 

sentenced him based on the guideline range of 87 to 108 months’ imprisonment with an 

upward departure to 120 months’ imprisonment. Appellant’s Br. 10, 13. The District 

Court was well aware of the mandatory minimum, and sentenced Vasquez-Liriano 

accordingly. App. at 29, 32, 33.