USA v. Jorge Bueno-Sierra

Filing

Opinion issued by court as to Appellant Jorge Eliecer Bueno-Sierra in 15-11990, 15-12282. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [15-11990, 15-12282]

Case: 15-11990

Date Filed: 02/02/2016

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 15-11990; 15-12282
Non-Argument Calendar
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D.C. Docket No. 1:93-cr-00567-DTKH-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ELIECER BUENO-SIERRA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(February 2, 2016)
Before HULL, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:

Case: 15-11990

Date Filed: 02/02/2016

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Jorge Bueno-Sierra, is a federal prisoner convicted of cocaine offenses
arising out of a cocaine importation scheme. Bueno-Sierra appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based
on Amendment 782 to the Sentencing Guidelines. The district court concluded
that Bueno-Sierra was ineligible for a § 3582(c)(2) sentence reduction because
Bueno-Sierra’s “base offense level remains at 38” after Amendment 782 due to the
large quantity of cocaine involved in his offenses. The district court also denied
Bueno-Sierra’s subsequent motion asking the court to vacate its order denying his
§ 3582(c)(2) motion and to hold a hearing to determine the amount of cocaine for
which he was responsible. Bueno-Sierra appeals that decision as well. After
review, we affirm. 1
A district court may reduce a term of imprisonment only if it was based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2); see also United States v. Lawson, 686 F.3d
1317, 1319 (11th Cir. 2012); U.S.S.G. § 1B1.10(a)(2)(B). Amendment 782, which
is retroactive, reduced by 2 levels the base offense levels for most drug offenses.
U.S.S.G. app. C, amend. 782 (2014). For offenses involving 450 kilograms or
more of cocaine, however, Amendment 782 had no effect on the base offense

1

This Court reviews de novo the district court’s legal conclusions regarding the scope of
its authority under 18 U.S.C. § 3582(c)(2) and for clear error its factual findings underlying those
legal conclusions. United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009).
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Date Filed: 02/02/2016

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level, which remains level 38, the highest offense level under the Drug Quantity
Table. See id.; U.S.S.G. § 2D1.1(c)(1) (2014).
At the original sentencing hearing, it was undisputed that Bueno-Sierra’s
offenses involved approximately 467 kilograms of cocaine found in a first
shipment from Colombia to Florida, which resulted in a base offense level of 38.
See U.S.S.G. § 2D1.1(c)(3) (1994) (providing for a base offense level of 38 if the
offense involved between 150 kilograms and 500 kilograms of cocaine). While
Bueno-Sierra objected to the mention of an additional 138 kilograms of cocaine
found in a second shipment, he did not object to the 467 kilograms in the first
shipment that was actually attributed to him in paragraphs 19 and 30 of his
Presentence Investigation Report (“PSI”). Therefore, for sentencing purposes,
Bueno-Sierra admitted that his offenses involved 467 kilograms of cocaine. See
United States v. Davis, 587 F.3d 1300, 1303-04 (11th Cir. 2009) (explaining that
the defendant is deemed to have admitted facts in the PSI to which he did not
specifically object). Bueno-Sierra did not appeal the drug quantity finding or the
calculation of his base offense level under § 2D1.1(c)(1). See United States v.
Bueno-Sierra, 99 F.3d 375 (11th Cir. 1996).
After Amendment 782, the 467 kilograms of cocaine attributed to BuenoSierra still results in a base offense level of 38 and a guidelines range of 360
months to life. See U.S.S.G. § 2D1.1(c)(1) (2014). Thus, the district court was
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without authority to reduce Bueno-Sierra’s sentence under § 3582(c)(2). See 18
U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B) (“A reduction in the defendant’s
term of imprisonment is not consistent with this policy statement and therefore is
not authorized under 18 U.S.C. § 3582(c)(2) if . . . an amendment listed [as
retroactive] does not have the effect of lowering the defendant’s applicable
guideline range.”).
Furthermore, the district court was not required to hold a hearing to resolve
Bueno-Sierra’s § 3582(c)(2) motion. The drug quantity attributed to Bueno-Sierra
was undisputed. Furthermore, as the district court explained, although it did not
state the drug quantity during the sentencing hearing, the PSI stated the drug
quantity, and the district court adopted that finding. The district court was required
to maintain its original sentencing determinations, including the drug quantity
finding, in determining whether Bueno-Sierra was eligible for a § 3582(c)(2)
sentence reduction. See United States v. Bravo, 203 F.3d 778, 781 (11th Cir.
2000) (stating that a § 3582(c)(2) proceeding does not constitute a de novo
resentencing, and “all original sentencing determinations remain unchanged with
the sole exception of the guideline range that has been amended since the original
sentencing”).
AFFIRMED.

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