11‐2624‐cr (L)
United States v. Rios
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2013
ARGUED: APRIL 29, 2014
DECIDED: SEPTEMBER 2, 2014
No. 11‐2624‐cr, 12‐209‐cr, 12‐303‐cr, 12‐310‐cr, 13‐1792‐cr*
UNITED STATES OF AMERICA,
Appellee,
v.
RAUL RIOS, MIGUEL BAUTISTA AKA TITA,
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: WALKER, POOLER, and WESLEY, 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.
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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.
________
ROBERT A. CULP, Garrison, N.Y., for
Defendant‐Appellant Miguel Bautista.
LAURIE S. HERSHEY, Manhasset, N.Y., on the
brief, for Defendant‐Appellant Raul Rios.
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CHRISTOPHER J. DIMASE (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.
________
JOHN M. WALKER, JR., 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’s
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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 Conduct
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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 Resentencing
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 resentencing 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, because of
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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 resentencing
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 than
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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
resentencing, 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 cocaine
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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
resentencing, 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 PSR
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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 resentencing.
DISCUSSION
“[W]e review a district court’s decision to deny a motion [for
resentencing] 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.
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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 to resentence 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.
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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. A14
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(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 resentencing, 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.
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II. Drug Quantity Findings by the District Court at the
Evidentiary Hearing
The district court denied Rios’s motion for resentencing 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.
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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.
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III. Bautista’s Guidelines Range
Bautista argues that he is entitled to be resentenced 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 he should be resentenced under 18 U.S.C. § 3582(c)(2), which
authorizes resentencing 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 at such a
resentencing, he could convince the district court to resentence him
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 “shall
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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 resentencing 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 resentencing 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 facts found
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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
resentencing, 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 five
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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 reasons
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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 resentencing.
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