FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Gustavo A. Gelpí, U.S. District Judge
Jay Black for appellant.
A. Schwartz, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and Nelson
Pérez-Sosa, Assistant United States Attorney, were on
brief, for appellee.
Lynch, Thompson, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
Javier Torres-Rivera ("Torres") appeals from the
district court's denial of his motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). It appears
from the record that the defendant's conduct in prison
was materially less problematic than the district court may
have been led to believe. We therefore vacate the denial of
Torres's motion and remand for reconsideration.
October 3, 2012, Torres pled guilty to one count of a
six-count indictment charging him with conspiring and
agreeing to possess with intent to distribute various
controlled substances, in violation of 21 U.S.C. §§
841(a)(1), 846 and 860. The charges against Torres stemmed
from his role as a supplier for a drug trafficking
organization in Mayaguez, Puerto Rico. His plea agreement
stipulated to a quantity range (between 3.5 and 5 kilograms)
and type (cocaine) of controlled substances that he
possessed. In light of that stipulation, the plea agreement
calculated the base offense level to be thirty. See
U.S. Sentencing Guidelines Manual (U.S.S.G.) §
2D1.1(c)(5) (U.S. Sentencing Comm'n 2012). The plea
agreement also calculated the total offense level to be
thirty, based on a one-level enhancement because the charge
stemmed from distribution of controlled substances in a
"protected location, " see id. §
2D1.2(a)(2), a two-level enhancement because the defendant
possessed a firearm, see id. § 2D1.1(b)(1), and
a three-level reduction because the defendant accepted
responsibility, see id. § 3E1.1(a), (b). The
plea agreement contained no stipulation as to Torres's
criminal history category but calculated the guidelines
sentencing range, assuming a criminal history category of
one, as 97 to 121 months. Id. ch. 5, pt. A,
sentencing table. It provided that the parties were
"free to argue for any sentence" between 102 and
district court held a sentencing hearing on January 23, 2013.
During the hearing, the district court adopted the plea
agreement's calculations, including its guidelines
sentencing range of 97 to 121 months. The government and defense
counsel both recommended 102 months, "the lower
end" of what the plea agreement allowed the government
to argue. The court, after considering the relevant
sentencing factors under 18 U.S.C. § 3553(a),
"follow[ed] that recommendation" and imposed a
sentence of 102 months' imprisonment, to be followed by
eight years of supervised release.
year after Torres was sentenced, the United States Sentencing
Commission voted unanimously to reduce the base offense level
by two for most drug trafficking crimes. See
U.S.S.G. app. C supp., amend. 782 (Nov. 1, 2014). It later
voted to give the amendment retroactive effect. See
id. amend. 788. Section 3582(c)(2) of Title 18 creates
an exception to the general rule that a federal district
court "may not modify a term of imprisonment once it has
been imposed, " 18 U.S.C. § 3582(c), by permitting
a court to revisit the sentence of a defendant for which a
subsequent amendment would have reduced his or her base
offense level at sentencing. Id. § 3582(c)(2).
Under this exception, "the court may reduce the term of
imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission, "
id. -- in this case, the policy statement contained
in U.S.S.G. § 1B1.10. See United States
v. Vaughn, 806 F.3d 640, 643 (1st Cir.
2015). The district court's inquiry involves two steps:
It must "first determine whether a reduction is
authorized by § 1B1.10 and, if so, the extent of any
authorized reduction, " and then "determine whether
a reduction is warranted according to the factors set out in
18 U.S.C. § 3553(a)." Id. (citing
Dillon v. United States, 560 U.S.
817, 826-27 (2010)).
filed a motion to reduce his sentence on the basis of
Amendment 782, which, if applied, would drop his total
offense level to twenty-eight and his guidelines sentencing
range to 78 to 97 months. See U.S.S.G. ch. 5, pt. A,
sentencing table. The government opposed Torres's motion.
In its submission, the government pointed out that Torres had
"already benefitted from a stipulated amount of drugs in
the Plea Agreement, thereby avoiding enhanced guideline
calculations." The government also stated as follows:
"[W]hile under custody of the Federal Bureau of Prisons,
[Torres] has engaged in actions resulting in disciplinary
sanctions, including possession of a hazardous tool and
introduction of drugs or alcohol." In a footnote
following this statement, the government wrote that "the
Court must consider public safety considerations, and may
consider information regarding the post-sentencing conduct or
situation of the defendant, whether positive or
government's description implied, by use of the word
"sanctions, " that there were multiple sanctions,
when the record indicates that there was only one sanction
based on a single incident resulting in two violations of
institutional regulations. The assertion also implied, by use
of the word "including, " that such sanctions
resulted from additional violations beyond those listed.
See Include, Black's Law ...