United States v. Alvarado

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FAUSTO AGUERO ALVARADO, Defendant- Appellant.

No. 22-12172

United States Court of Appeals, Eleventh Circuit

March 7, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:11-cr-20026-KMM-5 Before LAGOA, ANDERSON, and JULIE CARNES, Circuit Judges.

PER CURIAM.

Defendant Fausto Aguero Alvarado, a federal prisoner at FCI Bennettsville, appeals the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the sentencing guidelines and his motion for compassionate release pursuant to § 3582(c)(1)(A). The Government has filed a motion for summary affirmance. We find no error in the district court's rulings, and we conclude that summary affirmance is warranted. Thus, we GRANT the Government's motion and AFFIRM the district court's denial of both motions.

BACKGROUND

In July 2013, Defendant was convicted by a jury of conspiring to distribute cocaine knowing that it would be imported into the United States, in violation of 21 U.S.C. §§ 959(a), 963, and 960(b)(1)(B). In its verdict, the jury expressly found that Defendant conspired to distribute cocaine "weighing five kilograms or more." Five kilograms is the amount of cocaine necessary to impose the maximum penalty provided for in 21 U.S.C. § 960(b), including a minimum term of ten years and a maximum term of life imprisonment. See 21 U.S.C. § 960(b)(1)(B).

According to the undisputed facts in the PSR, Defendant's conviction arose from an investigation conducted by the Drug Enforcement Agency, the United States Department of Homeland Security ("DHS"), and Colombian law enforcement in 2009 concerning the sale of weapons to a terrorist organization in Colombia in exchange for cocaine. During the investigation, Defendant informed a Confidential Informant ("CI") that he had "M-60 machine guns, AK-47s Red Eye surface-to-air missiles" and other weapons manufactured in the United States that were available to be sold in Honduras and Nicaragua. Defendant also told the CI that he had a connection with a Nicaraguan national named Franklin McField-Bent who ran a drug trafficking organization in Colombia that transported drugs throughout Central America and into Mexico. The authorities subsequently learned that Defendant had introduced McField-Bent to a woman named Lina Grandet who purportedly had between 1,000 and 1,500 kilograms of cocaine in Colombia available to ship to Honduras. McField-Bent arranged to send $20,000 to Grandet to initiate a purchase of the cocaine, but the purchase was not completed.

Later in the investigation, the CI met with and advised Defendant that he was trying to acquire weapons for Autodefensas Unidas de Colombia, a Colombian organization that DHS has identified as an armed and violent foreign terrorist group. After the CI made a down payment of $3,000 to one of Defendant's associates for weapons to be provided in the future Defendant introduced the CI to McField-Bent. Thereafter Defendant served as a middleman or broker for several deals between the CI and McField-Bent involving the exchange of weapons manufactured in the United States for hundreds of kilograms of cocaine located in Colombia.

Evidence recovered by Colombian police indicates that one of the deals involved 442 kilograms of cocaine and another, separate deal involved 400 kilograms of cocaine. These quantities are in addition to the 1,000 to 1,500 kilograms of cocaine involved in the deal between McField-Bent and Grandet referenced above. Based on these quantities, the PSR concluded that Defendant was accountable for "well over 150 kilograms of cocaine."

The PSR assigned Defendant the highest base offense level of 38 pursuant to § 2D1.1(a)(5) of the sentencing guidelines, which at the time applied to an offense involving 150 kilograms or more of cocaine. The PSR added a 2-level enhancement for obstruction of justice, resulting in a total offense level of 40. Defendant's criminal history category was I, yielding a recommended guidelines range of 292 to 365 months in prison, with a ten-year minimum term of imprisonment and a maximum term of life pursuant to 21 U.S.C. § 960(b)(1)(B)(ii).

Defendant stated at his sentencing hearing that he did not have any objections to the PSR's description of his offense conduct or to its calculations.^[1] Consistent with the recommendations in the PSR, the district court sentenced Defendant to 360 months in prison, to be followed by five years of supervised release. This Court affirmed Defendant's conviction and sentence on direct appeal. See United States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015). In its opinion, the Court specifically referenced deals involving Defendant that included 1,000 kilograms and 400 kilograms of cocaine, respectively. See id. at 480-81.

In March 2019, Defendant filed a pro se motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782 to the sentencing guidelines. In support of his motion, Defendant argued that his base offense level of 38, the level that applied to 150 kilograms of cocaine at the time of his original sentencing, should be reduced by two levels to 36 under Amendment 782, a retroactively applicable amendment to the sentencing guidelines that lowered the base offense level for offenses involving at least 150 kilograms but less than 450 kilograms of cocaine. Defendant claimed the guidelines adjustment would result in a recommended guidelines range of 235 to 293 months in prison for his offense.

U.S.C. § 3582(c)(1)(A)(i).^[2] In support of his motion for compassionate release, Defendant argued that he was vulnerable to contracting COVID-19 because of the "poor sanitary conditions at his facility" and because of the many cases of COVID-19 among BOP staff and inmates. Additionally, Defendant argued that he had a "flawless" inmate disciplinary record and that he had been involved in continuous programming while in prison and at one point had acted heroically to "sav[e] the life of an employee of the United States Government." Finally, Defendant emphasized his rehabilitation efforts and he claimed that he no longer posed any danger to the public.

The district court denied Defendant's motions for a sentence reduction and for compassionate release in a single order. Regarding the Amendment 782 motion, the court cited undisputed facts in the PSR indicating that Defendant was accountable for at least 1,842 kilograms of cocaine, which quantity-finding triggered the same base offense level of 38 even when one applied Amendment 782. The court thus concluded that Defendant did not show he was entitled to a lower guidelines range under Amendment 782, as required to invoke § 3582(c)(2). As to compassionate release under § 3582(c)(1)(A), the district court found that Defendant did not satisfy his burden of demonstrating extraordinary and compelling reasons for his release, as required under that provision. Alternatively, the court stated that the § 3553(a) factors weighed against compassionate release.

Defendant appeals, arguing that the district court erred and abused its discretion when it denied his motion for a sentence reduction under § 3582(c)(2). As to his motion for compassionate release, Defendant essentially concedes that he does not qualify for relief under § 3582(c)(1)(A) based on any of the grounds this Court held in United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021) can support such relief-that is, an inmate's age, qualifying medical condition, or family circumstances. Instead, Defendant argues that the Court should abandon its precedent in Bryant and expand its definition of what qualifies as an extraordinary and compelling reason justifying compassionate release under § 3582(c)(1)(A).

DISCUSSION

I. Standards of Review

We review de novo a district court's legal conclusions about the scope of its authority to modify a sentence under 18 U.S.C. § 3582(c)(2). United States v. Caraballo-Martinez, 866 F.3d 1233, 1238 (11th Cir. 2017). Assuming the district court has such authority, we review the court's decision to grant or deny a sentence reduction under § 3582(c)(2) only for abuse of discretion. Id. Similarly, we review de novo whether a defendant is eligible for compassionate release pursuant to § 3582(c)(1)(A) and, if eligibility is established, we review the denial of a motion for compassionate release for abuse of discretion. United States v. Giron, 15 F.4th 1343, 1345 (11th Cir. 2021). "A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous." United States v. Harris, 989 F.3d 908, 911-12 (11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019) (quotation marks omitted)).

Summary disposition of an appeal is appropriate when "the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous." Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).^[3] This Court has used summary disposition to resolve appeals that do not warrant extended discussion.

II. Defendant's Motion for a Sentence Reduction Under 18 U.S.C. § 3582(c)(2)

Defendant argues that the district court erred when it denied his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the sentencing guidelines, which was implemented after Defendant was sentenced. Amendment 782 reduced by two levels the base offense level applicable to certain drug offenses under § 2D1.1(c) of the...