United States v. Carlos Francisco Alvarez-Rodriguez

USCA11 Case: 21-10005 Date Filed: 03/07/2022 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-10005 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS FRANCISCO ALVAREZ-RODRIGUEZ, a.k.a. Corbata, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:13-cr-20618-FAM-4 ____________________ USCA11 Case: 21-10005 Date Filed: 03/07/2022 Page: 2 of 5 2 Opinion of the Court 21-10005 Before BRANCH, GRANT, and LUCK, Circuit Judges. PER CURIAM: Carlos Alvarez-Rodriguez appeals the district court’s denial of his motion for a reduced sentence. We affirm. Alvarez-Rodriguez pleaded guilty to conspiring to possess with the intent to distribute five or more kilograms of cocaine. Al- varez-Rodriguez’s base offense level was thirty-eight, but a “safety- valve” provision reduced it by two levels. Because he pleaded guilty, the offense level was reduced by another three levels for ac- ceptance of responsibility, making his final offense level thirty- three and his advisory guideline range 135 months to 168 months’ imprisonment. While addressing the district court, though, Alvarez-Rodri- guez minimized his role in the drug-smuggling operation, which the district court described as “backpedaling.” Before imposing a sentence, the district court said that “based upon what the defend- ant [was] saying, [it] would be within the law to take away the ac- ceptance of responsibility downward adjustment.” But it “would not do that,” the district court explained, “because [Alvarez-Rodri- guez] accepted responsibility at the time of the guilty plea.” The district court denied Alvarez-Rodriguez’s motion for a downward variance and gave him a bottom-of-the-guidelines sentence of 135 months’ imprisonment. In its statement of reasons, the district court marked that it had accepted the presentencing investigation USCA11 Case: 21-10005 Date Filed: 03/07/2022 Page: 3 of 5 21-10005 Opinion of the Court 3 report—which included the three-level acceptance of responsibility reduction—without change. Alvarez-Rodriguez did not appeal. Three years later, Alvarez-Rodriguez moved to reduce his sentence because he accepted responsibility. Although he said, sev- eral times, that his motion should not be construed as one under section 2255, Alvarez-Rodriguez argued that his lawyer was inef- fective by failing to ensure proper application of the reduction. As relief, Alvarez-Rodriguez requested that his sentence be reduced to time served to address the disparity between his sentence and his codefendants’ sentences. The government opposed Alvarez-Rodriguez’s request. First, the government contended that the district court should treat Alvarez-Rodriguez’s motion as a motion to vacate under 28 U.S.C. section 2255 and deny it as untimely. Second, it argued that Alva- rez-Rodriguez’s motion was moot because he had already received the three-level reduction for acceptance of responsibility. Third, the government responded that the district court lacked authority under section 3582(c) to reduce Alvarez-Rodriguez’s sentence. The district court adopted the government’s response and denied the motion. On appeal, Alvarez-Rodriguez contends that the district court erred in denying his motion because he was eligible for a USCA11 Case: 21-10005 Date Filed: 03/07/2022 Page: 4 of 5 4 Opinion of the Court 21-10005 reduced sentence under the First Step Act.1 Alvarez-Rodriguez ar- gues that his sentence should have been reduced because he ac- cepted responsibility and to address the unwarranted sentencing disparity between him and his codefendants. But neither argument provides a basis to reduce his sentence under the First Step Act. Generally, there are two ways to get a sentence reduction under the First Step Act. In the first way, a defendant sentenced before August 3, 2010 for certain crack cocaine offenses may be el- igible for a reduced sentence. See First Step Act of 2018, Pub. L. No. 115-391, § 404(b)–(c), 132 Stat. 5194, 5222 (2018) (“A court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.”). But Alvarez-Rodriguez isn’t eligible for a sentence reduction under this part of the First Step Act because he was not sentenced for a crack cocaine offense and he was not sentenced before August 3, 2010. Alvarez-Rodriguez was sentenced for a powder cocaine of- fense and he was sentenced in May 2016. In the second way, “a district court may reduce a term of imprisonment if (1) the [section] 3553(a) sentencing factors favor doing so, (2) there are ‘extraordinary and compelling reasons’ for doing so, and . . . (3) doing so wouldn’t endanger any person or the 1 We review de novo “whether a district court had the authority to modify a [defendant’s] term of imprisonment” under the First Step Act. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). USCA11 Case: 21-10005 Date Filed: 03/07/2022 Page: 5 of 5 21-10005 Opinion of the Court 5 community within the meaning of [section] 1B1.13’s policy state- ment.” United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). But “extraordinary and compelling” reasons are limited to those consistent with the policy statement in section 1B1.13 of the sentencing guidelines. See United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021) (“[D]istrict courts may not reduce a sentence under Section 3582(c)(1)(A) unless a reduction would be consistent with 1B1.13.”). And Alvarez-Rodriguez’s reasons for a reduced sentence—acceptance of responsibility and an unwarranted sen- tencing disparity between codefendants—are not consistent with section 1B1.13. See U.S.S.G. § 1B1.13 (listing medical condition, advanced age, family circumstances, and other reasons as deter- mined by the Director of the Bureau of Prisons). Either way, Alvarez-Rodriguez was not eligible under the First Step Act for a sentence reduction. And, because Alvarez-Ro- driguez was not eligible under the First Step Act, we affirm the dis- trict court’s order denying his sentence reduction motion. AFFIRMED.