United States Court of Appeals
For the First Circuit
No. 15-2024
UNITED STATES OF AMERICA,
Appellee,
v.
JAVIER TORRES-RIVERA, a/k/a Javo,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Alan Jay Black for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Nelson Pérez-Sosa, Assistant United States
Attorney, were on brief, for appellee.
October 18, 2017
KAYATTA, Circuit Judge. Defendant Javier Torres-Rivera
("Torres") appeals from the district court's denial of his motion
to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). It
appears from the record that the defendant's conduct in prison was
materially less problematic than the district court may have been
led to believe. We therefore vacate the denial of Torres's motion
and remand for reconsideration.
I.
A.
On October 3, 2012, Torres pled guilty to one count of
a six-count indictment charging him with conspiring and agreeing
to possess with intent to distribute various controlled
substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 860.
The charges against Torres stemmed from his role as a supplier for
a drug trafficking organization in Mayaguez, Puerto Rico. His
plea agreement stipulated to a quantity range (between 3.5 and 5
kilograms) and type (cocaine) of controlled substances that he
possessed. In light of that stipulation, the plea agreement
calculated the base offense level to be thirty. See U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(c)(5) (U.S.
Sentencing Comm'n 2012). The plea agreement also calculated the
total offense level to be thirty, based on a one-level enhancement
because the charge stemmed from distribution of controlled
substances in a "protected location," see id. § 2D1.2(a)(2), a
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two-level enhancement because the defendant possessed a firearm,
see id. § 2D1.1(b)(1), and a three-level reduction because the
defendant accepted responsibility, see id. § 3E1.1(a),(b). The
plea agreement contained no stipulation as to Torres's criminal
history category but calculated the guidelines sentencing range,
assuming a criminal history category of one, as 97 to 121 months.
Id. ch. 5, pt. A, sentencing table. It provided that the parties
were "free to argue for any sentence" between 102 and 121 months.
The district court held a sentencing hearing on
January 23, 2013. During the hearing, the district court adopted
the plea agreement's calculations, including its guidelines
sentencing range of 97 to 121 months.1 The government and defense
counsel both recommended 102 months, "the lower end" of what the
plea agreement allowed the government to argue. The court, after
considering the relevant sentencing factors under 18 U.S.C.
§ 3553(a), "follow[ed] that recommendation" and imposed a sentence
of 102 months' imprisonment, to be followed by eight years of
supervised release.
B.
Over a year after Torres was sentenced, the United States
Sentencing Commission voted unanimously to reduce the base offense
1 Although the district court described the guidelines range
at sentencing as 97 to 120 months, given the context, we
assume that it intended to accurately describe the range as
97 to 121 months.
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level by two for most drug trafficking crimes. See U.S.S.G. app.
C supp., amend. 782 (Nov. 1, 2014). It later voted to give the
amendment retroactive effect. See id. amend. 788. Section
3582(c)(2) of Title 18 creates an exception to the general rule
that a federal district court "may not modify a term of
imprisonment once it has been imposed," 18 U.S.C. § 3582(c), by
permitting a court to revisit the sentence of a defendant for which
a subsequent amendment would have reduced his or her base offense
level at sentencing. Id. § 3582(c)(2). Under this exception,
"the court may reduce the term of imprisonment, after considering
the factors set forth in section 3553(a) to the extent that they
are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission," id. -- in
this case, the policy statement contained in U.S.S.G. § 1B1.10.
See United States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015).
The district court's inquiry involves two steps: It must "first
determine whether a reduction is authorized by § 1B1.10 and, if
so, the extent of any authorized reduction," and then "determine
whether a reduction is warranted according to the factors set out
in 18 U.S.C. § 3553(a)." Id. (citing Dillon v. United States, 560
U.S. 817, 826–27 (2010)).
Torres filed a motion to reduce his sentence on the basis
of Amendment 782, which, if applied, would drop his total offense
level to twenty-eight and his guidelines sentencing range to 78 to
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97 months. See U.S.S.G. ch. 5, pt. A, sentencing table. The
government opposed Torres's motion. In its submission, the
government pointed out that Torres had "already benefitted from a
stipulated amount of drugs in the Plea Agreement, thereby avoiding
enhanced guideline calculations." The government also stated as
follows: "[W]hile under custody of the Federal Bureau of Prisons,
[Torres] has engaged in actions resulting in disciplinary
sanctions, including possession of a hazardous tool and
introduction of drugs or alcohol." In a footnote following this
statement, the government wrote that "the Court must consider
public safety considerations, and may consider information
regarding the post-sentencing conduct or situation of the
defendant, whether positive or negative."
The government's description implied, by use of the word
"sanctions," that there were multiple sanctions, when the record
indicates that there was only one sanction based on a single
incident resulting in two violations of institutional regulations.
The assertion also implied, by use of the word "including," that
such sanctions resulted from additional violations beyond those
listed. See Include, Black's Law Dictionary (9th ed. 2009) ("The
participle including typically indicates a partial list . . . .").
Furthermore, the government's submission implied that
the conduct postdated, rather than predated, Torres's sentencing.
It did so by explaining, in connection with the conduct, that the
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court "may consider information regarding the post-sentencing
conduct or situation of the defendant, whether positive or
negative." The government would have had no occasion to discuss
post-sentencing conduct, including the legal relevance of such
conduct, unless Torres's sanction qualified as such.
Torres challenged the contentions that he had been
subject to more than one sanction and sought to clarify that the
one sanction was issued before he was sentenced. The record
reflects that Torres was plainly correct on both counts: He had
been sanctioned only once, over a year before sentencing, for two
violations of prison rules (possession of a hazardous tool and
introduction of drugs or alcohol). Torres also emphasized his
"clear conduct" since that incident and his substantial efforts
"to procure his own rehabilitation by studying and working."
Before deciding the motion, the district court also
received a submission from the U.S. Probation Office. The
probation officer made a recommendation -- "in his independent
capacity as a Court Investigator" -- to grant the motion and reduce
Torres's sentence of imprisonment by twenty months. In making
this recommendation, the probation officer noted that Torres "has
been sanctioned" in prison, but "has completed several educational
courses." In response, the government made no change in its
description of Torres's prison record.
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The district court denied Torres's motion for a sentence
reduction. In doing so, it "note[d] Defendant's role in the
offense, and particularly his possession of a firearm, as well as
his conduct at the Bureau of Prisons." (emphasis added).
Torres claims that, in so ruling, the district court
failed to consider the factors specified in 18 U.S.C. § 3553(a),
notwithstanding the fact that the district court also used a form
order stating that the court "[took] into account . . . the
sentencing factors set forth in 18 U.S.C. § 3553(a)." We accord
such a statement by the district court "great weight," and have
expressly deemed it to be sufficient where "the record as a whole
is sufficient for us to infer the pertinent factors taken into
account by the court below." United States v. Zayas-Ortiz, 808
F.3d 520, 524 (1st Cir. 2015). Here, though, the record presents
something of a puzzle in the form of the district court's
elaboration that it was relying, in part, on Torres's conduct in
prison. If the district court was referring to the government's
version as one would most reasonably construe it (multiple
sanctions for conduct "including" the two cited violations, all
possibly after sentencing), then the district court would have
based its decision on a falsely inflated view of the relevant
conduct. Cf. United States v. Rivero-Moreno, 613 F.3d 1, 8 (1st
Cir. 2010) (stating that, in the sentencing context, the district
court abuses its discretion if it, inter alia, relies on "clearly
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erroneous facts"). Conversely, it is possible (although perhaps
not as likely in view of the court's denial of Torres's motion)
that the district court was referring to Torres's conduct in prison
as Torres accurately described it. If so, we would likely affirm.
"[T]he question whether to reduce a final sentence pursuant to
§ 3582(c)(2) 'is a matter [Congress] committed to the sentencing
court's sound discretion.'" United States v. Candelaria-Silva,
714 F.3d 651, 656 (1st Cir. 2013) (alteration in original) (quoting
United States v. Aponte–Guzmán, 696 F.3d 157, 161 (1st Cir. 2012)).
Even with one presentence sanction, such a defalcation together
with the other factors cited would likely fall within the wide
range of the district court's discretion.
In many situations, brief references by the district
court to, for example, "a drug point owner who . . . stipulated
[to] a very reduced crack amount," are enough to allow us to infer
what the district court's reasoning was. See Aponte-Guzmán, 696
F.3d at 159, 161 (internal quotation marks omitted). Here, though,
the record offers no such inference, pointing instead ambiguously
in two different ways. Because of the presently quite plausible
possibility that the government's wording led the district court
astray on a point directly relevant to a section 3553(a) factor,
we opt not to guess what the district court was thinking. Instead,
we vacate the denial of Torres's motion and remand to provide the
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government the opportunity to clarify the record and to provide
the district court with the benefit of the record so clarified.
II.
In addition to his foregoing argument that the district
court must more clearly articulate its reasoning, Torres presents
three other challenges. We reject these additional challenges.
Torres first contends that the district court abused its
discretion by relying on his firearms possession to deny his
motion, since that factor was already taken into account in
determining his Guidelines range. According to Torres, this is
impermissible double-counting. Not all overlap between conduct
considered under the Guidelines and conduct relied upon for a
court's discretionary decision, however, constitutes improper
double-counting. See United States v. Maisonet-González, 785 F.3d
757, 763-64 (1st Cir. 2015) (holding that it was "neither
surprising nor impermissible" for a district court to use a
defendant's prior criminal history both to calculate his criminal
history category and to analyze the section 3553(a) sentencing
factors); United States v. Scherrer, 444 F.3d 91, 94 (1st Cir.
2007) (en banc) (concluding that it was "not unreasonable" for the
district court to rely on aggravating factors for multiple
section 3553(a) categories, thus dismissing a charge of double-
counting by the defendant). We have also permitted district courts
to apply multiple sentencing enhancements that "derive in some
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measure from a common nucleus of operative facts" when there is
"neither an explicit prohibition against double counting nor a
compelling basis for implying such a prohibition." United States
v. Reyes-Rivera, 812 F.3d 79, 88 (1st Cir. 2016) (quoting United
States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)); see also
United States v. Arsenault, 833 F.3d 24, 31 (1st Cir. 2016). By
directing the district court to consider the section 3553(a)
factors -- the very factors considered at sentencing -- in
determining whether a reduction is "warranted," some degree of
focusing on an already-considered factor is inherent in
section 3582(c)(2)'s structure. Faced with this situation in the
past, we affirmed. See Aponte-Guzmán, 696 F.3d at 158, 161. In
Aponte-Guzmán, as here, the defendant received a two-level
enhancement for possession of a firearm. And, as here, the
district court relied explicitly on the defendant having been
"involved with firearms" in denying his motion for a sentence
reduction under section 3582(c)(2). Id. at 159. Other circuits
faced with similar challenges have given the district court wide
latitude. See, e.g., United States v. Jones, 846 F.3d 366, 371
(D.C. Cir. 2017) (finding unavailing the defendants' argument that
"because the . . . Guidelines already accounted for the nature and
seriousness of their offenses . . . the district court couldn't
double-count those factors in denying their requested
reductions"). We similarly conclude that the district court did
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not abuse its discretion by considering Torres's firearms
possession.
Torres next points out that several other defendants
were granted two-level reductions pursuant to section 3582(c)(2)
despite also having prison disciplinary infractions. Because
section 3553(a)(6) directs the district court to consider "the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct," Torres argues that he should be granted the same
reduction. Although section 3553(a)(6) is "primarily aimed at
national disparities," United States v. Rivera-Gonzalez, 626 F.3d
639, 648 (1st Cir. 2010) (quoting United States v. Marceau, 554
F.3d 24, 33 (1st Cir. 2009)), we have also recognized that a
disparity with a co-defendant's sentence may render a sentence
substantively unreasonable, see United States v. Reyes-Santiago,
804 F.3d 453, 467 (1st Cir. 2015). However, "[w]e have routinely
rejected disparity claims . . . because complaining defendants
typically fail to acknowledge material differences between their
own circumstances and those of their more leniently punished
confederates." Id. A successful defendant must present an "apples
to apples" comparison. Id. Torres does not. He points to three
"co-conspirators" who received reductions as a result of Amendment
782. But no other defendant was charged along with Torres. They
were indicted separately for conduct at different locations and at
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different times. Most significantly, Torres's role in his drug
conspiracy -- the very conduct relied upon by the district court
-- differs from that of the other defendants. While Torres was a
supplier, the other defendants were either managers or enforcers.
The district court did not abuse its discretion by denying a
sentence reduction to Torres that had been granted to other
defendants.
Last, Torres contends that the district court abused its
discretion by not holding a hearing on his motion. However, a
hearing is not necessarily required in this context. See Restrepo-
Contreras v. United States, No. 96-1411, 1996 WL 636560, at *2
(1st Cir. Nov. 4, 1996) (unpublished opinion) (per curiam) ("A
reduction of sentence thus need not invariably be accompanied by
a hearing."); cf. Ramos-Martínez v. United States, 638 F.3d 315,
326 (1st Cir. 2011) (stating that, in connection with a motion to
vacate a sentence pursuant to 28 U.S.C. § 2255, "a petitioner 'is
not entitled to an evidentiary hearing as a matter of right'"
(quoting David v. United States, 134 F.3d 470, 477 (1st Cir.
1998))). Thus, we cannot say that the district court abused its
discretion in not holding a hearing.
III.
For the foregoing reasons, we vacate the district
court's denial of Torres's motion for a sentence reduction and
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remand to the district court for further proceedings consistent
with this opinion.
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