Case: 12-11201 Date Filed: 08/27/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11201
Non-Argument Calendar
________________________
D.C. Docket No. 8:07-cr-00255-JDW-TBM-3
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
WILLINGTON ALVAREZ-MOSQUERA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 27, 2012)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Case: 12-11201 Date Filed: 08/27/2012 Page: 2 of 3
On July 20, 2007, Willington Alvarez-Mosquera pled guilty to conspiracy to
possess with intent to distribute five or more kilograms of cocaine while on board
a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C.
§§ 70503(a) and 70506(a) and (b), and on November 20, 2007, the District Court
sentenced him to a prison term of 135 months, at the low end of the Guidelines
sentencing range of 135 to 168 months.1
On January 25, 2012, Alvarez-Mosquera, proceeding pro se, filed a motion
with the District Court styled MOTION UNDER 18 U.S.C. § 3582(c)(2) AND
U.S. SENTENCING GUIDELINE§ 1B1.10(c) FOR REDUCTION OF
SENTENCE BASED ON POST CONVICTION REHABILITATION
PURSUANT TO 18 U.S.S.G. § 3661. The body of the motion stated that he was
seeking a sentence reduction “pursuant to the Due Process Clause of the Fifth
Amendment and statute [18 U.S.C.] § 3661.” The District Court denied the
motion in a written order containing this statement: The court
has no jurisdiction to modify a sentence other than (1) upon a motion
of the Director of the Bureau of Prisons pursuant to 18 U.S.C. §
3582(c), to the extent expressly permitted by statute, or (2) upon a
motion by the Government pursuant to Rule 35 of the Federal Rules
of Criminal Procedure. Defendant presents no basis under these
provisions supporting a modification of his term of imprisonment.
1
At sentencing, he was held accountable for around 1394 kilograms of cocaine, which
yielded a total offense level of 33.
2
Case: 12-11201 Date Filed: 08/27/2012 Page: 3 of 3
Alvarez-Mosquera now appeals the court’s order, claiming that the court could
have reduced his sentence based on his post-sentencing rehabilitation efforts and
the recent availability of a fast-track program within the Middle District of
Florida.
As the District Court stated, it has authority to reduce a defendant’s
sentence under 28 U.S.C. § 3582(c)(2) on motion by the Director of the Bureau of
Prisons or on motion by the Government under Federal Rule of Criminal
Procedure 35(b)(2). Neither is present here. The court may also reduce a sentence
under §3582(c)(2) when the Sentencing Commission has lowered the Guidelines
sentencing range under which the defendant was sentenced. That has not shown
to be the case here. The District Court’s order is accordingly
AFFIRMED.
3