USA v. Alejandro Cano

Filing

Opinion issued by court as to Appellant Alejandro Cano in 15-14838, Appellant Edenilson A. Hernandez in 15-14841, Appellant Sean T. Baxter in 15-14925, Appellant Ernesto Garcia in 15-15382, Appellant Jersain Penaloza-Benitez in 15-15407. 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. [15-14838, 15-14841, 15-14925, 15-15382, 15-15407]

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14838
Non-Argument Calendar
________________________
D.C. Docket No. 6:07-cr-00201-GAP-KRS-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CANO,
a.k.a. Alejandro Cano-Sanchez,
Defendant-Appellant.
________________________
No. 15-14841
Non-Argument Calendar
________________________
D.C. Docket No. 6:10-cr-00003-MSS-DAB-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

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versus
EDENILSON A. HERNANDEZ,
a.k.a. Edenilson A. Hernandez-Rendero,
Defendant-Appellant.
________________________
No. 15-14925
Non-Argument Calendar
________________________
D.C. Docket No. 8:07-cr-00074-JDW-MAP-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEAN T. BAXTER,
Defendant-Appellant.
________________________
No. 15-15382
Non-Argument Calendar
________________________
D.C. Docket No. 2:04-cr-00016-JES-DNF-1

UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
versus
ERNESTO GARCIA,
a.k.a. Limon,
Defendant-Appellant.
________________________
No. 15-15407
Non-Argument Calendar
________________________
D.C. Docket No. 8:11-cr-00119-RAL-TBM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERSAIN PENALOZA-BENITEZ,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(February 15, 2017)
Before TJOFLAT, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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In this consolidated appeal, Defendants Alejandro Cano, Edenilson
Hernandez, Sean Baxter, Ernesto Garcia, and Jersain Penaloza-Benitez appeal
separate district court decisions denying and partially denying their motions for a
sentence reduction under 18 U.S.C. § 3582(c)(2). Defendants’ motions relied on
Amendment 782 of the Sentencing Guidelines, which reduced the base offense
level for most drug offenses. Defendants also requested a downward variance
comparable to the one they received at their original sentencings. The district
courts denied and partially denied Defendants’ motions, concluding that a district
court may not reduce a defendant’s sentence below the low end of the amended
guideline range pursuant to U.S.S.G. § 1B1.10(b)(2)(A). After careful review, we
affirm.
I.

BACKGROUND
Defendants were separately convicted of various unrelated drug offenses.

The probation officer prepared a presentence investigation report in each case,
utilizing U.S.S.G. § 2D1.1 to calculate each defendant’s base offense level. In four
of the cases, the district courts sentenced the defendants below their applicable
guideline ranges as a result of a downward variance. These variances were not
related to substantial assistance. In one of the cases, the district court departed

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from a criminal history category of III to II, and then sentenced the defendant
within the amended guideline range. 1
Following issuance of Amendment 782—made retroactive by Amendment
788—each defendant filed a motion requesting a sentence reduction under
§ 3582(c)(2). In particular, each defendant requested a sentence below their
amended guideline range under Amendment 782. Recognizing that binding
precedent precluded the district courts from varying below the minimum of the
amended guideline range, Defendants still requested a variance comparable to the
one imposed at their original sentencings.
In the cases of Cano and Hernandez, the district courts denied their
§ 3582(c)(2) motions, concluding that a sentence reduction was not permitted
under § 1B1.10(b)(2)(A) because their original sentences were either equal to or
below the minimum of their amended guideline ranges. As to Baxter, Garcia, and
Penaloza-Benitez, the district courts partially denied their motions. The district
1

To illustrate, Cano’s guideline range was 140 to 175 months’ imprisonment, but the district
court varied downward to 130 months’ imprisonment. As to Hernandez, the district court
calculated a guideline range of 135 to 168 months’ imprisonment, but imposed a 97-month
sentence based on the 18 U.S.C. § 3553(a) factors. As to Baxter, the district court imposed a
180-month sentence, which reflected a downward variance from the guideline range of 210 to
262 months’ imprisonment. Likewise, Penaloza-Benitez also received a downward variance to
120 months’ imprisonment from a guideline range of 135 to 168 months’ imprisonment. Unlike
the other defendants, the district court sentenced Garcia within the applicable guideline range.
To be clear, the district court departed from a criminal history category of III to a category II
after determining that Garcia’s criminal history was overrepresented, but then imposed a
sentence of 328 months—which was within the amended guideline range of 324 to 405 months’
imprisonment.
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courts reduced their sentences to the minimum of the amended guideline range, as
this was less than their original term of imprisonment, but did not grant these
defendants’ requests for a sentence below the low end of the amended guideline
ranges.
Following Defendants’ timely appeals of the denials of their § 3582(c)(2)
motions, we granted their motions to consolidate their appeals.
II.

DISCUSSION
A.

General Principles

We review de novo a district court’s legal conclusions on the scope of its
authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th
Cir. 2008). Under § 3582(c)(2), a district court may modify a term of
imprisonment when the original sentencing range has subsequently been lowered
as a result of an amendment to the Guidelines by the Sentencing Commission. 18
U.S.C. § 3582(c)(2).
To be eligible for a sentence reduction, a defendant must identify an
amendment to the Sentencing Guidelines that is listed in U.S.S.G. § 1B1.10(d).
U.S.S.G. § 1B1.10(a)(1). A district court may not use a guideline amendment to
reduce a defendant’s sentence unless the amendment actually lowers the
defendant’s applicable guideline range. Id. § 1B1.10(a)(2)(B); id. § 1B1.10,
comment. (n.1(A)).
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B.

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Analysis

Defendants’ appeal focuses on the district courts’ application of
§ 1B1.10(b)(2), as amended by Amendment 759, to deny their requests for a
sentence below the minimum of the amended guideline range.2
Prior to 2011, § 1B1.10 permitted the district court to reduce a defendant’s
sentence below the amended guideline range under certain circumstances.
U.S.S.G. § 1B1.10(b)(2)(B) (2010). However, the provision provided that if the
defendant had received a sentence below the guidelines as a result of a variance, a
further reduction would not be appropriate. Id. In 2011, the Sentencing
Commission issued Amendment 759, which, among other things, amended
§ 1B1.10 to prohibit courts from resentencing a defendant to a term below the
amended guideline range, except in cases of substantial assistance. U.S.S.G. App.
C, amend. 759; U.S.S.G. § 1B1.10(b)(2)(A)-(B). The Guidelines’ commentary
explains that the court may not impose a sentence below the amended guideline
range even if the defendant received a departure or variance at his original
sentencing. U.S.S.G. § 1B1.10, comment. (n.3).
Defendants argue that § 1B1.10(b)(2), as amended by Amendment 759,
violates the Ex Post Facto Clause, exceeds the Sentencing Commission’s authority
under 28 U.S.C. § 994(u), and violates the separation of powers doctrine. The
2

As noted earlier, Garcia did not receive a variance; he received a downward departure as to his
criminal history category and then received a sentence within the guideline range.
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problem for Defendants is that these arguments are foreclosed by our decision in
United States v. Colon, 707 F.3d 1255 (11th Cir. 2013). In Colon, we held that the
application of § 1B1.10(b)(2), post-Amendment 759, did not violate the Ex Post
Facto Clause or the separation of powers doctrine, nor did the Sentencing
Commission exceed its authority under § 994(u) by amending § 1B1.10(b)(2). See
Colon, 707 F.3d at 1258–62. Under the prior precedent rule, we are bound by our
decision in Colon “unless and until it is overruled by this court en banc or by the
Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.
2008) (quoting United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)).
Defendants further assert that our decision in Colon has been undermined by
the Supreme Court’s subsequent decision in Peugh v. United States, 133 S. Ct.
2072 (2013). In Peugh, the Supreme Court held that a defendant’s rights under the
Ex Post Facto Clause are violated when he is sentenced under a more recent
version of the guidelines that provide for a harsher sentence than the guidelines
applicable at the time he committed the offense. 133 S. Ct. at 2079, 2088.
However, Peugh does not overrule or conflict with our decision in Colon, as Colon
addressed whether the application of a Guidelines’ amendment that limited the
district court’s discretion to reduce a defendant’s sentence under § 3582(c)(2)
violated the Ex Post Facto Clause. See Colon, 707 F.3d at 1258–62. Therefore,
Colon remains binding precedent. See Vega-Castillo, 540 F.3d at 1236.
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We are also not persuaded by Defendants’ argument that the postAmendment version of § 1B1.10(b)(2) conflicts with Congress’s statutory directive
to avoid unwarranted sentencing disparities. In fact, the Sentencing Commission
explained that Amendment 759, which eliminated the distinction between
departures and variances for purposes of the exception to § 1B1.10(b)(2), furthered
the “need to avoid unwarranted sentencing disparities and avoids [the need for]
litigation in individual cases.” U.S.S.G. App. C, amend. 759 (Reasons for
Amendment).
In short, the district court properly applied § 1B1.10(b)(2) in concluding that
Defendants were not entitled to a sentence reduction below the minimum of their
amended guideline ranges. Accordingly, the district courts’ denials and partial
denials of Defendants’ § 3582(c)(2) motions are AFFIRMED.

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