US v. Davila-Lopez

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; William J. Kayatta , Jr., Appellate Judge and David J. Barron, Appellate Judge. Unpublished. [14-1277]

Case: 14-1277

Document: 00117157591

Page: 1

Date Filed: 05/22/2017

Entry ID: 6093744

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 14-1277
UNITED STATES OF AMERICA,
Appellee,
v.
YAMIL DAVILA-LOPEZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before
Lynch, Kayatta, and Barron,
Circuit Judges.

Thomas Trebilcock-Horan and Trebilcock & Rovira, LLC on brief
for appellant.
Julia M. Meconiates, Assistant U.S. Attorney, Mariana E.
Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division,
and Rosa Emilia Rodríguez-Vélez, U.S. Attorney, on brief for
appellee.

May 22, 2017

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LYNCH,

Circuit

Page: 2

Judge.

Date Filed: 05/22/2017

In

this

Entry ID: 6093744

sentencing

appeal,

defendant Yamil Davila-Lopez raises two issues: (1) whether the
district court committed procedural error by denying him a twolevel reduction under the Guidelines pursuant to U.S.S.G. § 3B1.2,
and (2) whether the sentence ultimately imposed by the district
court

is

substantively

unreasonable.

Both

of

Davila-Lopez's

claims lack merit, and we affirm his sentence of 135 months'
imprisonment.
Nonetheless, we remand to allow the district court to
consider anew whether to grant Davila-Lopez's post-appeal motion
for a sentence reduction, which he has apparently requested in
light of an amendment to the Guidelines that took effect after he
was sentenced, see U.S.S.G. Manual app. C, amend. 782 (2014), and
which the district court granted while this appeal was pending.
We vacate for want of jurisdiction the district court's order
granting that reduction in the first instance.
I.
Davila-Lopez worked in a variety of capacities for a
drug-trafficking

organization,

which,

between

2005

and

2010,

imported cocaine and heroin into Puerto Rico and the continental
United States from the Dominican Republic on board luxury yachts
equipped with secret compartments designed to hide contraband.
Davila-Lopez participated as a transporter in at least two trips
to and from the Dominican Republic, during which he helped smuggle
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$2-3 million in narcotics.
an

engineer

to

the

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Davila-Lopez also lent his skills as

organization

by

constructing

the

compartments used to hide drugs and money on the yachts.

secret

Finally,

Davila-Lopez stored drugs and drug proceeds for the organization
at his residence.
On August 23, 2013, Davila-Lopez pled guilty to both
counts of an indictment charging him with conspiracy to import
cocaine into the United States, in violation of 21 U.S.C. §§ 952(a)
and 963, and conspiracy to possess with the intent to distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

The

United States Probation Office filed a Presentence Report ("PSR")
on December 4, 2013.

The PSR's calculation of Davila-Lopez's

sentence began with a Base Offense Level ("BOL") of 38 because his
offenses involved at least 150 kilograms of cocaine.
§ 2D1.1(c).
responsibility,

See U.S.S.G.

With a three-level reduction for acceptance of
see

id.

§

3E1.1(a)-(b),

Davila-Lopez's

Total

Offense Level ("TOL") was set at 35, which, combined with a
Criminal History Category of I, yielded a Guideline Sentencing
Range ("GSR") of 168 to 210 months.
Davila-Lopez did not file any written objections to the
PSR.

Before his sentencing hearing, he filed a motion requesting

that the district court grant him a two-level reduction applicable
when the defendant's role in the relevant criminal activity was
"minor."

Id. § 3B1.2(b).

The district court denied the motion in
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a line order, and when defense counsel renewed the request at
sentencing, the court denied it again from the bench.
The court did grant Davila-Lopez a different two-level
reduction, assented to by the government, because he met the
criteria for the safety valve set forth in U.S.S.G. § 5C1.2.

The

court's remaining calculations mirrored those set forth in the
PSR. With a resulting TOL of 33, Davila-Lopez's GSR was determined
to be 135 to 168 months and, after considering the § 3553(a)
factors, the court imposed a bottom-end sentence of 135 months'
imprisonment.
II.
On appeal, Davila-Lopez first claims that the court
erred in denying him the minor role reduction.

He argues that he

should not be viewed as a major player in the drug-trafficking
organization, as there is no evidence that he "had any proximity
[to]

the

[organization's]

ringleaders"

or

"negotiated

purchase or sale" of the organization's narcotics.

the[]

Instead, he

argues, he was "a mere transporter" who "served as a mechanic and
handy man for the organization and offered his residence" for the
storage of contraband -- a far cry from a "leader."
"A defendant bears the burden of proving his entitlement
to

a

minor

evidence."
Cir. 2015).

participant

reduction

by

a

preponderance

of

the

United States v. Meléndez-Rivera, 782 F.3d 26, 28 (1st
To prevail in this appeal, Davila-Lopez must show
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that the district court's finding that he did not satisfy that
burden was clearly erroneous.

Id. at 29.

He cannot make this

showing.
The district court emphasized, and it is undisputed,
that (1) Davila-Lopez helped smuggle approximately 860 kilograms
of cocaine into Puerto Rico during two separate trips, (2) he used
his specialized skills to "creat[e] or construct[] the hidden
compartments" in the vessels that the "smuggling venture" relied
on to "be successful," and (3) he permitted the conspirators -and was sufficiently trusted by them -- to store drugs and proceeds
at his home prior to their reaching their final destination.

"A

determination of a defendant's role in [an] offense is invariably
fact-specific," id., and, on these uncontested facts, the court
was

certainly

justified

in

concluding

that

Davila-Lopez's

contributions to the criminal enterprise were too significant for
his role to be deemed "minor."
Davila-Lopez's insistence that he was not among the
organization's
erroneous.

"leader[s]"

does

not

make

the

court's

finding

See id. ("[A] defendant need not be the key figure in

a conspiracy in order to be denied [the minor role reduction].");
United States v. García-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011)
("The fact that [other participants] may be more culpable than the
defendant does not necessarily mean that the defendant's role in
the offense is minor."); see also, e.g., United States v. Vargas,
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560 F.3d 45, 50 (1st Cir. 2009) (affirming the denial of the
reduction where the defendant truck driver delivered a single
shipment of cocaine but had no "involvement in [any] other facet[]
of the conspiracy"); United States v. Santos, 357 F.3d 136, 143
(1st Cir. 2004) ("[E]ven those who serve purely and simply as drug
couriers

are

not

automatically

guaranteed

mitigating

role

reductions.").
Davila-Lopez's

second

claim

on

appeal

--

that

his

sentence is substantively unreasonable -- is easily dispatched.
Davila-Lopez did not object to his sentence before the district
court, but we need not decide whether plain error review applies
because Davila-Lopez's argument fails even under the abuse of
discretion

standard

applicable

substantive reasonableness.

to

preserved

challenges

to

See United States v. Ruiz-Huertas,

792 F.3d 223, 228 (1st Cir. 2015).
Davila-Lopez's argument is essentially that the district
court did not afford adequate weight to the "mitigating factors"
he presented in support of his request for the "minimum possible
sentence" -- namely, that his role in the organization was, by his
account, minor and that his wife was in the process of receiving
treatment for cancer.
The district court did not abuse its discretion in
denying Davila-Lopez's request for a variance to the statutory
minimum sentence, rather than a Guidelines sentence. Indeed, after
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considering the role Davila-Lopez played in the criminal activity,
the court considered his personal history and characteristics -including mitigating circumstances, such as his family ties, lack
of substance abuse, and otherwise clean criminal record -- and
concluded that "punishment and deterrence" would be sufficiently
afforded by a sentence at the minimum boundary of the properly
calculated GSR.

See 18 U.S.C. § 3553(a); see also United States

v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017) (sentences "well
within the Guidelines range" are presumptively reasonable).

While

the court did not find that Davila-Lopez's wife's medical treatment
warranted a variance below the GSR, it did grant him the right to
voluntarily surrender one week after the sentencing hearing, when
his wife would be more fully "recuperated from her surgical
operations."
Ultimately, "[a] sentencing court is under a mandate to
consider a myriad of relevant factors, but the weighting of those
factors is largely within the court's informed discretion." United
States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011).

Davila-

Lopez seeks merely to "substitute his judgment for that of the
sentencing court," and that is not a basis for a finding of error.
Id. The district court did not impose a substantively unreasonable
sentence.
Davila-Lopez's sentence of 135 months' imprisonment is
affirmed.
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III.
The docket of the district court reveals events postdating the filing and pre-dating the resolution of this appeal
that bear on our disposition.1
After Davila-Lopez filed his appeal, the Guidelines were
amended, with retroactive effect, in a manner that lowered the BOL
applicable to the offenses of conviction in this case.

See

U.S.S.G. Manual app. C, amends. 782, 788 (2014); United States v.
Rodríguez-Milián, 820 F.3d 26, 35 (1st Cir.), cert. denied, 137 S.
Ct. 138 (2016) (mem.).

Despite the fact that his appeal to this

court was pending, Davila-Lopez moved, in the district court, for
a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2).
The parties then jointly filed a memorandum with the district court
stipulating to a revised sentence of 108 months -- the bottom end
of the GSR of 108 to 135 months that would apply if the Guidelines
amendment were given effect and no other changes were made to the
court's earlier calculations.

1

In dereliction of their duties to this court, the parties
did not bring these developments to our attention; it is only
because they appear on the district court's docket that we are
aware of them. See Fed. R. App. P. 12.1(a) ("If a timely motion
is made in the district court for relief that it lacks authority
to grant because of an appeal that has been docketed and is
pending, the movant must promptly notify the circuit clerk if the
district court states . . . that it would grant the motion . . . ."
(emphasis added)).
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The

district

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court

did

Date Filed: 05/22/2017

not

have

Entry ID: 6093744

jurisdiction

over

Davila-Lopez's motion, notwithstanding the parties' stipulation,
because this court had assumed appellate jurisdiction over DavilaLopez's

sentence.

See

Rodríguez-Milián,

820

F.3d

at

35.

Nonetheless, the district court erroneously purported to grant
that

motion,

stipulation.

in

accordance

with

the

parties'

108-month

See Fed. R. App. P. 12.1(a) (where a district court

lacks jurisdiction over a motion because the matter is pending on
appeal, it may indicate "that it would grant the motion or that
the motion raises a substantial issue," but it may not grant the
motion outright (emphasis added)).
Because the district court lacked jurisdiction, "[t]he
putative sentence reduction is . . . a nullity," Rodríguez-Milián,
820 F.3d at 35, and the order granting it is vacated.

However, we

will construe that order as an indication that the court would
grant Davila-Lopez's motion, and we remand the case so that the
motion can be properly entertained.
Fed. R. App. P. 12.1(b).

See id. at 35-36; see also

In doing so, we remind the district court

that it may "substitute the amended Guidelines range" for the
initial

range,

but

it

must

"'leav[e]

all

other

guideline

application decisions unaffected,'" Dillon v. United States, 560
U.S.

817,

821

(2010)

(quoting

U.S.S.G.

§

1B1.10(b)(1)),

and

otherwise comply with the strictures of U.S.S.G. § 1B1.10(b)(2).
So ordered.
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