USA v. Jose Romeu

Filing

Opinion issued by court as to Appellant Jose Romeu. 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.

Case: 15-13329

Date Filed: 05/04/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13329
Non-Argument Calendar
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D.C. Docket No. 4:91-cr-10021-JLK-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROMEU,
a.k.a. Joseito,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 4, 2016)
Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:

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Jose Romeu appeals pro se the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction under Amendment 782 to the United
States Sentencing Guidelines. On appeal, Romeu argues that the district court
failed to sufficiently explain its consideration of the 18 U.S.C. § 3553(a)
sentencing factors. He also argues that the record lacked sufficient specificity
regarding the drug quantity for which he was held responsible at sentencing.
Finally, he argues that the original sentencing court violated the Ex Post Facto
Clause by using the guidelines in effect at the time of his sentencing instead of
those in effect at the time the offense was committed. He alleges that his base
offense level should have been 36 instead of 38.
We review the district court’s legal conclusions regarding its own authority
under the guidelines de novo and its factual findings for clear error. United States
v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009) (per curiam). The defendant bears
the burden of proving that a retroactive amendment would lower his guideline
range. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013). We will
liberally construe a defendant’s pro se pleadings. United States v. Webb, 565 F.3d
789, 792 (11th Cir. 2009) (per curiam).
A district court may modify a defendant’s term of imprisonment where: (1)
the defendant was sentenced “based on a sentencing range that has subsequently
been lowered by the Sentencing Commission”; and (2) the sentence reduction “is
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consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Amendment 782 reduced by two levels the
base offense levels that apply to most drug offenses. See USSG App. C, Amend.
782 (2014). This change is retroactive as a matter of Sentencing Commission
policy, but the Sentencing Commission has announced that a sentence reduction is
not consistent with its policy if the amendment at issue “does not have the effect of
lowering the defendant’s applicable guideline range.” USSG § 1B1.10(a)(2)(B).
A § 3582(c)(2) sentence reduction proceeding is not a de novo sentencing
and all the original sentencing determinations made by the district court remain the
same, with the exception of the amended guideline range. United States v.
Phillips, 597 F.3d 1190, 1198 (11th Cir. 2010). Facts contained in a presentence
investigation report (“PSI”) are deemed admitted for sentencing purposes unless a
party objects to them clearly and specifically at sentencing. See Davis, 587 F.3d at
1303–04. A court deciding a § 3582(c)(2) motion may thus rely on the undisputed
facts in the PSI that were admitted at the original sentence proceeding.
Upon careful review of the record and consideration of the parties’ briefs,
we affirm. As an initial matter, the district court could not grant Romeu relief on
his alleged Ex Post Facto Clause violation. Because a § 3582(c)(2) proceeding is
not a de novo resentencing, all original sentencing determinations remain
unchanged except for the amended guideline range. See Phillips, 597 F.3d at 1198.
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The district court did not have the “jurisdiction to consider extraneous resentencing
issues” such as this claim in the § 3582(c)(2) sentence reduction proceeding.
United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000).
Romeu bears the burden of establishing that Amendment 782 lowered his
guideline range. Hamilton, 715 F.3d at 337. He has not offered evidence that the
drug quantity attributed to him at his original sentencing would result in a reduced
guideline range under Amendment 782. Though his PSI set forth that the offense
involved drugs in an amount equal to 767,773 kilograms of marijuana, Romeu
objected at his original sentencing to the drug quantity and suggested he should be
held accountable for only an amount equal to 169,878 kilograms of marijuana. It
is not clear from the record which amount the original sentencing court relied on to
sentence Romeu. Unfortunately for Romeu, it makes no difference.
Even if the sentencing court granted Romeu’s objection and held him
accountable for 169,878 kilograms of marijuana, that amount is above the 90,000kilogram threshold necessary to trigger the highest base offense level of 38 under
Amendment 782. USSG § 2D1.1(c)(1). That means Romeu’s base offense level
would not be different even after Amendment 782. The district court thus lacked
authority to reduce Romeu’s sentence. Id. § 1B1.10(a)(2)(B).
Romeu’s argument that the district court failed to explain its consideration of
the § 3553(a) factors also fails. Where a district court recognizes that it has no
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authority to reduce a sentence under § 3582(c)(2), it does not need to examine the
§ 3553(a) factors. See Webb, 565 F.3d at 793. We therefore affirm the district
court’s denial of Romeu’s motion to reduce his sentence.
AFFIRMED.

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