United States Court of Appeals
For the First Circuit
No. 03-2364
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS HUMBERTO CABRERA-POLO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Robert Little, by appointment of the court, on brief for
appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón and
Thomas F. Klumper, Assistant United States Attorneys, on brief for
appellee.
July 16, 2004
SELYA, Circuit Judge. Defendant-appellant Carlos
Humberto Cabrera-Polo (Cabrera) pleaded guilty to participating in
a drug conspiracy and was sentenced to serve a 78-month
incarcerative term. He did not appeal. Subsequently, however, he
moved to modify his sentence. The district court denied that
motion and Cabrera now invites us to reverse that ruling. We
decline the invitation.
The historical facts are largely undisputed. Agents of
the Drug Enforcement Administration apprehended and detained
Cabrera on November 20, 1998, after they caught him red-handed
receiving a package of heroin at the Luis Muñoz Marín International
Airport in Carolina, Puerto Rico. To cut to the chase, Cabrera
eventually pleaded guilty to one count of a second superseding
indictment charging conspiracy with intent to distribute between
700 grams and one kilogram of heroin. See 21 U.S.C. §§ 841(a),
841(b)(1)(B)(i), 846.
The district court sentenced Cabrera on October 26,
2001.1 The presentence investigation report recommended a base
offense level of 30. See USSG §2D1.1(c)(5). With a two-level
reduction for acceptance of responsibility, see id. §3E1.1(a), his
1
The November 2000 edition of the sentencing guidelines
controls in this case. See United States v. Harotunian, 920 F.2d
1040, 1041-42 (1st Cir. 1990) ("Barring any ex post facto problem,
a defendant is to be punished according to the guidelines in effect
at the time of sentencing."). Thus, we refer throughout to that
edition.
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adjusted offense level was 28. Because Cabrera had no prior
criminal record, the guideline sentencing range (GSR) was 78-97
months. The district court sentenced him to the bottom of the
applicable range. He did not seek, and the district court did not
grant, a so-called "safety valve" adjustment. See id.
§§2D1.1(b)(6), 5C1.2; see also United States v. Ortiz-Santiago, 211
F.3d 146, 150 (1st Cir. 2000) (explaining the operation of the
safety valve).
Although Cabrera did not appeal from these sentencing
determinations, he later discovered a typographical error in the
final judgment (which indicated that his crime was not completed
until almost a year after his arrest). In view of this error, he
moved to vacate the judgment pursuant to 28 U.S.C. § 2255. On
April 30, 2003, the district court granted the motion, vacated the
judgment, and then reentered it with a corrected description of the
offense. The sentence itself remained unchanged.
Twenty-eight days later, Cabrera moved to modify his
sentence. The gravamen of the motion was his argument that
Amendment 640 to the sentencing guidelines, effective November 1,
2002, applied retroactively to his case and authorized the court to
reduce his sentence by utilizing the safety valve adjustment.2 The
2
The amendment relates to USSG §2D1.1(b)(6). It states that
if a defendant receives a downward adjustment for a mitigating role
in the offense, "the base offense level under this subsection shall
not be more than level 30." USSG supp. to App. C, amend. 640, at
263. It then adds a new application note, which explains in
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government objected. In considering this motion, the district
court did not address whether Amendment 640 applied retroactively
or, indeed, whether it had any pertinence to Cabrera's case.
Instead, the court disposed of the motion on the ground that
Cabrera was ineligible for safety valve relief because of his
managerial role in the offense of conviction. This appeal
followed.
We are not committed to the district court's reasoning,
but, rather, may affirm its order on any independent ground made
apparent by the record. Intergen N.V. v. Grina, 344 F.3d 134, 141
(1st Cir. 2003); United States v. Nivica, 887 F.2d 1110, 1127 (1st
Cir. 1989). In this instance, we believe that the district court
proceeded too hastily to the merits. There is a logically
antecedent question involving the propriety vel non of Cabrera's
motion. We turn to that question.
In his brief, Cabrera classifies his motion as a motion
to modify an imposed term of imprisonment. That taxonomy seems
appropriate.3 Consequently, we inquire first whether Cabrera's
relevant part that "[t]he applicability of [the safety valve] shall
be determined without regard to whether the defendant was convicted
of an offense that subjects the defendant to a mandatory minimum
term of imprisonment." Id. at 264.
3
In other circumstances, it might be possible to construe the
motion as one under 28 U.S.C. § 2255 for modification or vacation
of an illegal sentence. That option is not available to Cabrera
because of his previous section 2255 motion. See Sepulveda v.
United States, 330 F.3d 55, 66 (1st Cir. 2003) (noting restrictions
on the bringing of "second or successive" section 2255 motions);
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situation fits within the narrow confines of the statutory
provision governing motions to modify judgments in criminal cases,
namely, 18 U.S.C. § 3582(c).
Section 3582(c) grants federal courts a limited power to
modify criminal sentences in specific types of situations. The
statute limns three areas in which such relief may be available.
Generally speaking, these areas are accessible if a defendant can
show that (i) the requested change is expressly permitted either by
statute or by Rule 35 of the Federal Rules of Criminal Procedure,
(ii) the Sentencing Commission has revised the guidelines in a
fashion that lowers the applicable GSR and clears the way for
retroactive application of the revision, or (iii) certain
extraordinary and compelling reasons exist that warrant a
modification. This case does not implicate either the first or
third areas, and Cabrera advances no argumentation that touches
upon them. Therefore, we focus our attention on the second
alternative.
The statute provides in pertinent part:
[I]n 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 pursuant
to 28 U.S.C. § 994(o) . . . the court may
reduce the term of imprisonment . . . if such
a reduction is consistent with applicable
policy statements issued by the Sentencing
Commission.
see also 28 U.S.C. § 2255, ¶ 8.
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18 U.S.C. § 3582(c)(2). Cabrera argues that, in enacting Amendment
640, the Sentencing Commission effectively reduced the GSR
applicable to his case and anticipated that the amendment would be
applied retroactively. On this basis, he urges that section
3582(c)(2) authorizes reevaluation of his sentence.
We do not agree with this construct. By its terms,
section 3582(c)(2) authorizes a reduction in sentence only if the
reduction is "consistent with applicable policy statements issued
by the Sentencing Commission." For present purposes, two policy
statements are germane.
The first of these policy statements says that "if a
court applies an earlier edition of the Guidelines Manual, the
court shall consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes." USSG
§1B1.11(b)(2). Thus, clarifying amendments — amendments that are
purely expository — may be applied retroactively. See United
States v. LaCroix, 28 F.3d 223, 227 n.4 (1st Cir. 1994); Isabel v.
United States, 980 F.2d 60, 62 (1st Cir. 1992); see also David v.
United States, 134 F.3d 470, 476 (1st Cir. 1998).
Though he does not fully brief the point, Cabrera argues
by implication that one portion of Amendment 640 — providing that
the safety valve is available regardless of whether there is a
mandatory minimum sentence for the offense, see supra note 2 —
merely clarifies the existing guideline. This is true as far as it
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goes; indeed, the commentary to the amendment says this explicitly.
See USSG supp. to App. C, amend. 640, at 265. But that language
cannot be read in a vacuum. Amendment 640 also works a substantive
change in the applicable guideline because its principal effect is
to create a new offense level cap for safety valve purposes. See
id. at 263. For that reason, the three courts that have passed
upon the point (including this court, albeit in a non-precedential
opinion) have pronounced Amendment 640 to be substantive in nature.
See United States v. Diaz-Cardenas, 351 F.3d 404, 409-10 (9th Cir.
2003); United States v. Coneo-Guerrero, 86 Fed. Appx. 438, 439 (1st
Cir. 2004) (per curiam); United States v. Smith, 68 Fed. Appx. 514,
514 (4th Cir. 2003) (per curiam).
A guideline amendment is either substantive or it is not.
This amendment is substantive. See cases supra; see also United
States v. Descent, 292 F.3d 703, 708 (11th Cir. 2002) (per curiam)
(directing courts to look at the "significance of the amendment as
a whole"). Amendment 640 is, therefore, not retroactive under the
"clarification" doctrine.
This conclusion does not end our inquiry. The fact that
a guideline amendment is substantive in character does not
necessarily vitiate all hope that it may apply retroactively. See,
e.g., Desouza v. United States, 995 F.2d 323, 324 (1st Cir. 1993)
(per curiam); United States v. Havener, 905 F.2d 3, 4-5 (1st Cir.
1990). A second policy statement explains that a substantive
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guideline amendment may be accorded retroactive effect if it is
listed in USSG §1B1.10(c). See USSG §1B1.10(a); see also United
States v. Sanchez, 81 F.3d 9, 12 (1st Cir. 1996); Desouza, 995 F.2d
at 324. Here, however, the Sentencing Commission did not see fit
to include Amendment 640 in the section 1B1.10(c) list. Thus, that
policy statement closes the door on Cabrera's claim that the
Sentencing Commission anticipated its retroactive application. As
the Commission itself has admonished: "If none of the amendments
listed in subsection (c) is applicable, a reduction in the
defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) is
not consistent with this policy statement and thus is not
authorized." USSG §1B1.10(a). For this reason, we agree with the
Second Circuit that the Sentencing Commission's decision not to
list Amendment 640 (which, as we have said, is substantive) in USSG
§1B1.10(c) deprives the amendment of any possible retroactive
effect. United States v. Garcia, 339 F.3d 116, 120 (2d Cir. 2003)
(per curiam).
We add a coda. Based on the record before us, Cabrera
seems at all times to have satisfied the plain language of the
safety valve guideline.4 Had he raised his claim of entitlement to
4
The reason given by the district court for withholding relief
under the safety valve — Cabrera's supposed managerial role in the
offense of conviction — would be no impediment. After all, the
court did not impose a role-in-the-offense enhancement at
sentencing, and the absence of such an adjustment defeats the
court's subsequent rationale. See USSG §5C1.2, cmt. (n.5)
(explaining that a defendant is ineligible for the safety valve by
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the safety valve at sentencing and appealed a denial, he may well
have succeeded in his quest. See, e.g., Ortiz-Santiago, 211 F.3d
at 152. But Cabrera never raised the point at the disposition
hearing, and to make matters worse, he took no direct appeal from
the imposition of the sentence. Those defaults are insurmountable
in this proceeding. After all, a motion to modify a sentence
cannot be used as a substitute for a direct appeal. United States
v. Torres-Aquino, 334 F.3d 939, 941 (10th Cir. 2003) (finding that
a defendant improvidently brought a section 3582 claim and
explaining that "[a]n argument that a sentence was incorrectly
imposed should be raised on direct appeal or in a [section 2255]
motion").
We need go no further. Because Cabrera's motion to
modify his sentence lacks the necessary statutory grounding under
18 U.S.C. § 3582(c)(2), we refuse to disturb the district court's
denial of that motion.
Affirmed.
virtue of a managerial role only if he has received a role-in-the-
offense enhancement).
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