US v. Zayas-Ortiz
Filing
OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Norman H. Stahl, Appellate Judge and William J. Kayatta, Jr., Appellate Judge. Published. [15-1449]
Case: 15-1449
Document: 00116930292
Page: 1
Date Filed: 12/11/2015
Entry ID: 5960950
United States Court of Appeals
For the First Circuit
No. 15-1449
UNITED STATES OF AMERICA,
Appellee,
v.
EMMANUEL ZAYAS-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Patricia A. Garrity, Research and Writing Specialist, Eric
A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres,
Supervisory Assistant Federal Public Defender, on brief for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Susan Z. Jorgensen, Assistant United States
Attorney, and Rosa Emilia Rodriguez-Velez, United States
Attorney, on brief for appellee.
December 11, 2015
Case: 15-1449
Document: 00116930292
Page: 2
STAHL, Circuit Judge.
United
States
Emmanuel
Sentencing
Zayas-Ortiz
filed
Date Filed: 12/11/2015
Following an amendment to the
Guidelines,
a
motion
pursuant to 18 U.S.C. § 3582(c).
Defendant-Appellant
for
sentence
reduction
The motion was opposed by the
United States and the probation officer.
The district court
denied the motion with a short form order.
appeals.
Entry ID: 5960950
The defendant now
We affirm.
I.
Facts & Background
On December 12, 2005, Emmanuel Zayas-Ortiz ("Zayas")
was charged, along with sixty-five co-defendants, with knowingly
and
intentionally
agreeing
to
narcotics;
conspiring,
possess,
with
specifically,
combining,
intent
five
to
confederating,
distribute,
kilograms
or
more
and
controlled
of
cocaine,
fifty grams or more of cocaine base, and one kilogram or more of
heroin.
Zayas eventually entered into a plea agreement with the
United States, which stipulated, inter alia, that Zayas was one
of the drug trafficking operation's leaders, that Zayas was an
"enforcer" and owned "drug points" where the illicit products
were sold, and that Zayas possessed a firearm in the course of
the offense.
Consistent
recommended
the
with
following
this
agreement,
sentencing
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the
calculations
parties
under
the
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Document: 00116930292
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Entry ID: 5960950
United States Sentencing Guidelines Manual ("U.S.S.G." or "the
guidelines"):
Zayas
thirty-eight
for
841(b)(1)(A),
and
would
receive
violations
846.
of
Pursuant
a
base
18
to
offense
U.S.C.
§§
U.S.S.G.
level
of
841(a)(1),
§ 3B1.1,
Zayas
would receive a two-level enhancement for his leadership role in
the
conspiracy,
and,
pursuant
to
U.S.S.G.
§ 2D1.1,
he
would
receive another two-level enhancement for the use of firearms
within
the
offset
conspiracy.
by
a
These
three-level
increases
would
reduction
for
be
partially
acceptance
of
responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a
total
adjusted
offense
level
of
thirty-nine
imprisonment range of 262 to 327 months.
and
yielding
an
The parties agreed to
recommend a term of imprisonment of 264 months.
The probation
officer prepared a Pre-Sentence Report ("PSR") with calculations
mirroring those found in the plea agreement.
On
Zayas
at
the
January
bottom
17,
of
2007,
the
the
district
guidelines
range
court
to
sentenced
a
term
of
imprisonment of 262 months and a supervised release term of five
years.
That judgment was appealed and subsequently affirmed by
this Court.
This recitation is merely background for purposes of
the instant appeal.
On March 9, 2009, Zayas filed his first
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Document: 00116930292
motion
to
pursuant
reduce
to
his
amendments
Page: 4
sentence
706
and
Date Filed: 12/11/2015
under
711
to
18
U.S.C.
the
Entry ID: 5960950
§
3582(c),
guidelines.
The
government stipulated to the reduction, which resulted in a twopoint
offense
level
decrease,
an
adjusted
offense
level
of
thirty-seven, and an amended sentencing range of 210 to 262
months.
The district court granted the motion, sentencing Zayas
at the bottom of the now-amended guidelines range to a term of
imprisonment of 210 months.
The district court was faced with a case of déjà vu
when,
on
reduce
December
pursuant
his
to
20,
sentence
2011,
under
amendments
748
Zayas
filed
18
U.S.C.
and
750
to
§
a
second
3582(c),
the
motion
to
this
time
guidelines.
The
government again stipulated to the reduction, which resulted in
another two-point offense level decrease, an adjusted offense
level of thirty-five, and an amended sentencing range of 168 to
210 months.
The district court granted the motion, sentencing
Zayas at the bottom of the amended guidelines range to a term of
imprisonment of 168 months.
On November 7, 2014, the court then faced "déjà vu all
over again," as the late Yogi Berra might have said, when the
defendant filed his third motion to reduce his sentence under 18
U.S.C. § 3582(c), this time pursuant to amendments 782 and 788
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to the guidelines.
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Date Filed: 12/11/2015
Entry ID: 5960950
This reduction would have resulted in yet
another two-point offense level decrease, an adjusted offense
level of thirty-three, and a sentencing range of 135 to 168
months.
But
stipulating
probation
this
to
the
officer
time
there
reduction,
opposed
the
was
a
both
twist.
the
motion,
Rather
government
citing
the
and
than
the
defendant's
leadership and enforcement roles, ownership of drug points, and
possession of a dangerous weapon in the course of the offense
conduct.
In response, the defendant urged the district court to
reject the government's position.
The defendant argued that
these factors had already been accounted for when the sentence
was initially imposed and did not, taken alone, reflect any
increased danger to public safety.
positive
disciplinary
The defendant also noted his
record
and
rehabilitative
efforts
in
2015,
the
district
denied
the
prison.
On
March
16,
motion using a form order.
court
The form states, in relevant part
that, "having considered [the defendant's] motion, and taking
into
account
§ 1B1.10
and
the
the
policy
statement
sentencing
factors
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set
set
forth
forth
at
[U.S.S.G.]
in
18
U.S.C.
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Entry ID: 5960950
§ 3553(a), to the extent that they are applicable, . . . the
motion is DENIED."
This appeal followed.
II.
Analysis
"'[A] judgment of conviction that includes [a sentence
of imprisonment] constitutes a final judgment' and may not be
modified by a district court except in limited circumstances."
Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18
U.S.C.
§
3582(b)).
The
district
court's
power
under
§ 3582(c)(2) to reduce the prison term of a defendant who was
sentenced based on a guidelines range that has subsequently been
lowered
by
the
"Commission")
United
constitutes
States
one
Sentencing
such
"exception
rule of finality" governing such sentences.
Commission
to
the
(the
general
Id.
District courts proceeding under § 3582(c)(2) follow a
two-step approach.
United States v. Candelaria-Silva, 714 F.3d
651, 656 (1st Cir. 2013).
prisoner's
eligibility
for
First, the court determines "the
a
sentence
extent of the reduction authorized."
U.S. at 827).
modification
and
the
Id. (quoting Dillon, 560
At this stage, "the court considers whether it
has the legal authority to grant the reduction requested; thus,
its conclusions of law are reviewed de novo, and its factual
findings, for clear error."
Id.
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Second,
the
Page: 7
court
Date Filed: 12/11/2015
"consider[s]
any
Entry ID: 5960950
applicable
§ 3553(a) factors and determine[s] whether, in its discretion,
the reduction . . . is warranted in whole or in part under the
particular circumstances of the case."
Dillon, 560 U.S. at 827.
"Decisions at this stage are reviewed for abuse of discretion,
as the question whether to reduce a final sentence pursuant to
§ 3582(c)(2) 'is a matter [Congress] committed to the sentencing
court's sound discretion.'"
Candelaria-Silva, 714 F.3d at 656
(quoting United States v. Aponte–Guzmán, 696 F.3d 157, 159–61
(1st Cir. 2012)).
As such, even where the first step has been
met, and the defendant has been determined eligible to seek a
§ 3582(c) reduction, "the district judge may conclude that a
reduction would be inappropriate."
Freeman v. United States,
131 S. Ct. 2685, 2694 (2011).
Zayas
contends
that
the
district
court
abused
its
discretion by failing to consider the § 3553(a) factors and by
failing to give sufficient reasons for its decision.1
He claims
1
The government urges us to consider the defendant's
argument waived because he failed to sufficiently cite or
develop the argument in his brief.
We assume without deciding
that Zayas did not waive his argument.
It is a "settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."
United States v. Zannino, 895 F.2d 1, 17 (1st
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that one cannot discern what factors, if any, the court relied
on
in
denying
his
motion.
According
to
Zayas,
"no
reasons
whatsoever were given by the district court in its order denying
[his]
motion
and
there
is
no
correlation
factors set forth in § 3553(a)."
was
an
error
discretion.
of
law
to
the
statutory
This, the defendant contends,
necessarily
constituting
an
abuse
of
See United States v. Caraballo, 552 F.3d 6, 8 (1st
Cir. 2008) ("A material error of law is perforce an abuse of
discretion.").
Despite the district court's admittedly Spartan denial
order, the defendant's argument comes up short.2
Zayas himself
acknowledges that the judge is not required to articulate the
applicability of each factor, "as long as the record as a whole
'demonstrates that the pertinent factors were taken into account
Cir. 1990). As this Court has noted, "[i]t is not enough merely
to mention a possible argument in the most skeletal way, leaving
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones."
Id.
This rule is
commonly deployed, however, against ancillary arguments tossed
carelessly against the wall in the hope that one might stick.
Despite the paucity of authority offered by the appellant in
support of his position, we need not explore the contours of
this convention, for the appeal fails on the merits.
2
The parties do not truly contest the defendant's
eligibility for the reduction under step one of the analysis, so
we proceed directly to step two.
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by the district court.'"
Date Filed: 12/11/2015
Entry ID: 5960950
United States v. Vautier, 144 F.3d
756, 762 (11th Cir. 1998) (quoting United States v. Eggersdorf,
126
F.3d
context,
1318,
we
considered
1322
have
the
(11th
held
that
relevant
§
Cir.
a
1997)).
judge's
3553(a)
In
the
statement
factors
"is
sentencing
that
he
entitled
has
to
significant weight."
United States v. Santiago-Rivera, 744 F.3d
229,
2014)
233
(1st
Cir.
(citing
United
González, 595 F.3d 42, 49 (1st Cir. 2010)).
States
v.
Dávila–
Zayas has offered
no reason why this rule should not apply with equal force in the
§ 3582(c) context.
Here, the district court utilized a form order that
explicitly states that the judge "[took] into account the policy
statement set forth at [U.S.S.G.] § 1B1.10 and the sentencing
factors set forth in 18 U.S.C. § 3553(a)[.]"
Zayas derides this
as "stock language," but fails to provide any rationale as to
why the judge must type this phase afresh for each and every
reduction order rather than saving himself the effort by relying
upon a form prepared for this very purpose.
Moreover, the record as a whole is sufficient for us
to infer the pertinent factors taken into account by the court
below.
United States v. Rodriguez-Rivera, 473 F.3d 21, 29 (1st
Cir. 2007) ("[A] court's reasoning can often be inferred by
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comparing what was argued by the parties or contained in the
pre-sentence report with what the judge did.") (quoting United
States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en
banc)).
safety
The
government
concerns
appropriate
and
given
opposed
argued
the
the
that
a
defendant's
motion
based
reduction
leadership
on
public
would
and
not
be
enforcement
roles, ownership of drug points, and possession of a dangerous
weapon in the course of the offense conduct.
The probation
officer's recommendation echoed this assessment.
The need for a
sentence
to
§ 3553(a)
protect
the
factors.
determining
the
public
See
§
particular
is,
of
course,
3553(a)(2)(C)
sentence
to
one
("The
be
of
court,
imposed,
the
in
shall
consider . . . the need for the sentence imposed . . . to
protect
the
public
defendant . . . .").
arguing
that
government's
§ 3553(a)
from
In
fact,
"[n]either
further
[the
response
inquiry
(emphasis added).
Zayas
finds
defendant's]
discussed
(aside
crimes
from
factors
public
of
himself
the
awkwardly
motion
nor
the
relevant
to
the
safety
concerns)."
This is somewhat akin to a restauranteur
advising an allergic patron that his meal contains no shellfish
(aside from shrimp).
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Perhaps
aware
Page: 11
of
his
advances one final argument.
Date Filed: 12/11/2015
weak
position,
the
Entry ID: 5960950
defendant
Zayas says that if the public
safety factor was determinative, then the district court would
not have granted his two prior reductions; ergo, the court could
not
have
safety.
sauce
denied
his
third
reduction
on
the
basis
of
public
While this argument is worth considering, it is more
than
substance.
There
is
nothing
incongruent
about
believing that successive reductions in a defendant's sentence
are
only
warranted
up
to
a
point.
The
district
court
was
entitled to determine that a reduction from 262 months to 210
months was warranted, and that a reduction from 210 months to
168 months was warranted, but that a reduction from 168 months
to 135 months would be the proverbial bridge too far.
The
defendant
must
remember
that
the
Commission's
authorization of a discretionary reduction "does not entitle a
defendant
right."
to
a
reduced
term
of
imprisonment
U.S.S.G. § 1B1.10 cmt. background.
as
a
matter
of
Rather, the final
decision is entrusted to "the sound discretion of the court."
Id.
Although the Commission's amendments reflect a generalized
determination that the reduction "should not jeopardize public
safety,"
amendments
U.S.S.G.
also
supplement
recognize
the
to
app.
court's
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C
role
amend.
in
782,
conducting
the
an
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Entry ID: 5960950
individualized assessment into whether retroactive application
is warranted on a case-by-case basis, see U.S.S.G. supplement to
app. C amend. 788 ("[P]ublic safety will be considered in every
case . . . in determining whether . . . a reduction in the
defendant's term of imprisonment is warranted . . . .") (citing
U.S.S.G. § 1B1.10, cmt. n.1(B)(ii)) (emphasis added).
In
short,
the
record
adequately
reflects
upon which the defendant's motion was denied.
the
basis
We recognize that
the court could have expounded further upon the basis for its
decision.
Even a single sentence incorporating the government's
or probation officer's position might have spared this case a
trip to the seat of the First Circuit and all the attendant
effort
and
expense
associated
therewith.
However,
on
this
record, we cannot say that the court abused its discretion in
denying the defendant's motion.
III.
Conclusion
For the foregoing reasons, the judgment is AFFIRMED.
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