USA v. Ivan Campillo Restrepo

Filing

Opinion issued by court as to Appellant Ivan Rodrigo Campillo-Restrepo. 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: 16-13382

Date Filed: 01/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13382
Non-Argument Calendar
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D.C. Docket No. 4:90-cr-10023-JLK-3

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IVAN RODRIGO CAMPILLO-RESTREPO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 23, 2017)
Before ED CARNES, Chief Judge, TJOFLAT, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:

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In 1991 a jury found Ivan Rodrigo Campillo-Restrepo guilty of four offenses
involving cocaine: conspiracy to import it, importation of it, conspiracy to possess
it with the intent to distribute, and possession of it with the intent to distribute.
Under § 3D1.2(d) of the sentencing guidelines, the presentence investigation report
(PSR) grouped all four offenses together, concluded that Campillo-Restrepo’s
offenses involved negotiating to import 500 kilograms of cocaine and successfully
importing 360 kilograms of cocaine, and calculated a base offense level of 38.
After making adjustments for the specific characteristics of the offenses and
Campillo-Restrepo’s role in them, the PSR set a total offense level of 43. Based on
that total offense level, Campillo-Restrepo’s resulting guideline range was life
imprisonment. The district court adopted the guideline calculation and sentenced
Campillo-Restrepo to a term of life imprisonment.
In 2014 Campillo-Restrepo, proceeding pro se, filed a motion to reduce his
sentence under 18 U.S.C. § 3582(c)(2), contending that Amendment 782, which
retroactively amended the sentencing guidelines’ drug quantity tables in § 2D1.1,
lowered his base offense level. The magistrate judge entered a report
recommending that the motion be denied, and the district court adopted that
recommendation and denied Campillo-Restrepo’s motion. This is his appeal.
We review de novo the district court’s legal conclusions about its authority
under § 3582(c)(2), and we review for clear error the district court’s factual
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findings supporting those legal conclusions. United States v. Davis, 587 F.3d
1300, 1303 (11th Cir. 2009). Under § 3582(c)(2), a district court may modify the
sentence of “a defendant who was sentenced to a term of imprisonment based on a
sentencing range” that the Sentencing Commission later lowered. 18 U.S.C.
§ 3582(c)(2). Any reduction, however, must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id. And the applicable policy
statement provides that a reduction in the term of imprisonment is not authorized if
the amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B) & (d).
In a § 3582(c)(2) proceeding, “all original sentencing determinations remain
unchanged with the sole exception of the guideline range that has been amended
since the original sentencing”; a de novo resentencing is not permitted. United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000) (emphasis omitted). As a
result, if at the original sentence hearing the district court determined the drug
quantity attributable to the defendant, during the § 3582(c)(2) proceeding it is not
permitted to make a new finding about drug quantity that is inconsistent with that
original finding. See United States v. Hamilton, 715 F.3d 328, 339–40 (11th Cir.
2013); United States v. Cothran, 160 F.3d 1560, 1563 & 1563 n.5 (11th Cir. 1997).
Amendment 782 provides for a two-level reduction in the base offense level
for most drug offenses. U.S.S.G. App. C, amend. 782. At the time of Campillo3

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Restrepo’s sentence hearing, the guidelines provided a base offense level of 38 for
defendants responsible for 150 kilograms to 500 kilograms of cocaine. U.S.S.G.
§ 2D1.1(a)(3), (c)(3) (1991). Under the amended guidelines, a defendant receives
a base offense level of 38 if he is responsible for 450 kilograms of cocaine or more,
and he receives a base offense level of 36 if he is responsible for at least 150
kilograms but less than 450 kilograms of cocaine. U.S.S.G. § 2D1.1(a)(5), (c)(1),
(c)(2) (2015).
The district court denied Campillo-Restrepo’s motion because it concluded
that at the original sentence hearing it had made a specific finding that he was
responsible for 500 kilograms of cocaine, and as a result his base offense level of
38 remained unchanged by Amendment 782. Campillo-Restrepo contends that the
sentencing court never made a specific drug quantity finding and that, when
confronted with his motion, the district court should have examined the entire
record to determine the amount of cocaine attributable to him. See Hamilton, 715
F.3d at 340. And Campillo-Restrepo concludes that his base offense level should
be lowered because the evidence did not support a finding that he was responsible
for any more than 400 kilograms of cocaine.
Campillo-Restrepo’s PSR noted that his “offense involves the negotiations
for 500 kilograms of cocaine, however, only 360 kilograms were successfully
imported. Pursuant to § 2D1.1 offenses involving between 150 and 500 kilograms
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of cocaine have a base offense level of 38.” The commentary to the guidelines
state that “[i]f the defendant is convicted of an offense involving negotiation to
traffic in a controlled substance, the weight under negotiation in an uncompleted
distribution shall be used to calculate the applicable amount.”1 U.S.S.G. § 2D1.4
cmt. n.1 (1991); see id. § 2D1.1 cmt. n.12 (1991) (“If the offense involved
negotiation to traffic in a controlled substance, see Application Note 1 of the
Commentary to § 2D1.4.”).
At the original sentence hearing, the district court adopted the PSR’s drug
quantity finding and specifically noted that Campillo-Restrepo had negotiated to
“import 360, excuse me, 500 kilos of cocaine into the United States.” And when
confronted with Campillo-Restrepo’s motion to reduce his sentence, the district
court relied on that quantity finding to deny the motion because, based on that
amount, Campillo-Restrepo’s base offense level remained the same. The district
court was bound by that earlier finding about drug quantity, which led it to
conclude that Amendment 782 did not lower Campillo-Restrepo’s guideline range.
As a result, the district court did not err in denying Campillo-Restrepo’s motion.
AFFIRMED.

1

The commentary also notes that if “the defendant did not intend to produce and was not
reasonably capable of producing the negotiated amount,” then “the court shall exclude from the
guideline calculation the amount that it finds the defendant did not intend to produce and was not
reasonably capable of producing.” U.S.S.G. § 2D1.4 cmt. n.1 (1991). Campillo-Restrepo does
not contend that this exception applies.
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