USA v. Gabriel Hernandez

Filing

Opinion issued by court as to Appellant Gabriel Hernandez. Decision: Vacated and Remanded. 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.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15257
Non-Argument Calendar
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D.C. Docket No. 1:99-cr-00716-DMM-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 6, 2017)
Before HULL, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Gabriel Hernandez appeals pro se the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence. This is Hernandez’s third § 3582(c)(2)
motion and his second § 3582(c)(2) motion based on Amendment 599 of the
Sentencing Guidelines. After review, we conclude the district court lacked
jurisdiction to rule on Hernandez’s second § 3582(c)(2) motion based on
Amendment 599.
After a 2000 jury trial, Hernandez was found guilty of conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846
(“Count 1”); attempting to possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 841(a)(1), 846, and 2 (“Count 2”); and using and carrying a firearm
during and in relation to a drug-trafficking crime, in violation of 18 U.S.C.
§§ 924(c)(1) and 2 (“Count 3”). For Counts 1 and 2, the district court calculated
an advisory guidelines range of 235 to 293 months, which included an
enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). The
district court imposed concurrent 235-month sentences on Counts 1 and 2, and a
mandatory-minimum, consecutive 60-month term on Count 3, for a total sentence
of 295 months’ imprisonment.
I. FIRST § 3582(c)(2) MOTION
In 2011, Hernandez filed his first § 3582(c)(2) motion, which was based on
Amendment 599. Amendment 599 clarified that a defendant should not receive an
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enhancement for using, brandishing, or discharging a firearm during an underlying
offense where, like Hernandez, the defendant is also convicted of a § 924(c)
offense. See U.S.S.G. app. C, amend. 599; U.S.S.G. § 2K2.4 cmt. n.4.
On April 20, 2012, the district court denied Hernandez’s motion. The
district court concluded that Hernandez was eligible for a sentence reduction under
Amendment 599, but denied the motion because Hernandez’s original 235-month
sentence on Counts 1 and 2 fell within the new guidelines range of 188 to 235
months and remained the appropriate sentence under the 18 U.S.C. § 3553(a)
factors. The district court stressed the seriousness of Hernandez’s offense, in
which he planned to take part in a violent, armed robbery of a stash house to obtain
at least 25 kilograms of cocaine and up to $2 million in cash, and Hernandez’s lies
to a probation officer about his identity and criminal history in an attempt to obtain
pretrial release. This Court affirmed the denial of Hernandez’s first § 3582(c)(2)
motion. See United States v. Hernandez, 515 F. App’x 872 (11th Cir. 2013).
II. SECOND § 3582(c)(2) MOTION
In February 2015, Hernandez filed a second § 3582(c)(2) motion based on
Amendment 782, which lowered the base offense levels for many drug offenses.
See U.S.S.G. app. C, amend. 782. This time, the district court granted
Hernandez’s motion and reduced his concurrent sentences on Counts 1 and 2 to

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188 months’ imprisonment, and imposed a total 248-month sentence. Hernandez
did not appeal this ruling.
III. THIRD § 3582(c)(2) MOTION
In October 2015, Hernandez filed his third § 3582(c)(2) motion, which is the
subject of this appeal. Hernandez’s third § 3582(c)(2) motion, like his first motion,
was based on Amendment 599. In it, Hernandez asked the district court to
reconsider its April 2012 ruling, arguing that the facts upon which the district court
had based its earlier denial had changed. Hernandez argued that he had not lied to
the probation officer about his criminal history during his underlying criminal
proceedings by concealing prior arrests. Hernandez attached letters from state
prosecutors indicating that pending charges against Hernandez in New York and
Pennsylvania had been withdrawn. The district court denied this motion, pointing
out that Hernandez had filed the same motion for a reduction in 2011 and that the
prior motion had been denied.
IV. DISCUSSION
On appeal, Hernandez argues that the district court procedurally erred by
failing to adequately explain its reasons for denying his second § 3582(c)(2)
motion based on Amendment 599. We do not reach that issue, however, because
the district court lacked jurisdiction to consider Hernandez’s second § 3582(c)(2)
motion based on Amendment 599.
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Pursuant to § 3582(c)(2), the district court may reduce a defendant’s prison
term if the defendant was “sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). To determine whether a sentence
reduction is warranted, the district court “must engage in a two-part analysis.”
United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). At the first step, the
district court determines whether the applicable retroactive amendment lowered the
defendant’s guidelines range. Id.; U.S.S.G. § 1B1.10(b)(1). If so, at the second
step, the district court must decide whether to exercise its discretion to impose a
new sentence under the amended guidelines range or retain the original sentence.
Bravo, 203 F.3d at 781. At this second step, the district court considers some of
the § 3553(a) sentencing factors and the nature and severity of danger to any
person posed by a sentence reduction, and it may also consider the defendant’s
post-sentencing conduct. United States v. Smith, 568 F.3d 923, 927 (11th Cir.
2009).
Section 3582(c)(2) “contains no language that places a limitation on the
district court’s jurisdiction to consider successive motions based on the same
amendment to the Sentencing Guidelines.” United States v. Anderson, 772 F.3d
662, 667 (11th Cir. 2014). However, if the denial of the first motion based on the
same amendment is on the merits—that is, a denial based on the second step of the
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§ 3582(c)(2) analysis—it constitutes “in essence, a new sentence . . . . [in which
the district court] chooses to resentence the defendant to the same term of
imprisonment after considering various factors.” Id. As such, the district court
lacks jurisdiction to modify or vacate the re-imposed sentence except: (1) where
the Bureau of Prisons has filed a motion and either extraordinary or compelling
reasons warrant a reduction or the defendant is at least 70 years old and meets
certain other requirements; (2) by statute or under Federal Rule of Criminal
Procedure 35, which provides 14 days to correct a sentence for clear error; or (3)
where a defendant was sentenced to a term of imprisonment based on a guideline
range that was subsequently lowered by the Sentencing Commission. See id. at
667-68; see also United States v. Phillips, 597 F.3d 1190, 1195-96 (11th Cir. 2010)
(holding that the district court lacked jurisdiction to consider a motion for
reconsideration after it reduced Phillips’s sentence under § 3582(c)(2)). Thus,
once the original sentence is re-imposed pursuant to § 3582(c)(2), the strictures of
Rule 35 apply “and the district court only has fourteen days to correct a sentence
for clear error.” Anderson, 772 F.3d at 667.
Here, the district court denied Hernandez’s first § 3582(c)(2) motion based
on Amendment 599 on the merits. That is, the district court found that
Amendment 599 lowered Hernandez’s advisory guidelines range, but determined
that a sentence reduction was unwarranted based on the § 3553(a) factors and the
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fact that his sentence remained within the new guidelines range. Therefore, the
district court’s April 20, 2012 order denying the first § 3582(c)(2) in effect reimposed the original sentence. Under Rule 35(a) and this Court’s precedent in
Anderson, after fourteen days from the entry of the April 20, 2012 order, the
district court lacked jurisdiction to entertain a subsequent § 3582(c)(2) motion
based on the same guidelines amendment.
Accordingly, we vacate the district court’s order denying Hernandez’s
second § 3582(c)(2) motion based on Amendment 599 and remand for the district
court to enter an order dismissing that § 3582(c)(2) motion for lack of jurisdiction.
VACATED AND REMANDED.

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