United States v. Vasques-Agino

1

UNITED STATES OF AMERICA, Plaintiff, v. CLAIDER VASQUES-AGINO Defendant.

No. 17-cr-60071-BLOOM

United States District Court, S.D. Florida

September 3, 2024

ORDER ON MOTION TO REDUCE SENTENCE PURSUANT TO 18 § U.S.C. 3582(c)(2) AND SECTION 4C1.1 OF THE SENTENCING GUIDELINES WITH REQUEST FOR A HEARING

BETH BLOOM UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Claider Vasques-Agino's (“Defendant”) Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2) and Section 4C1.1 of the Sentencing Guidelines with a Request for Hearing, (“Motion”). ECF No. [113]. The United States of America (“Government”) filed a Response, (“Response”). ECF No. [114]. The Court has reviewed the Motion, the opposing submission, the record and is otherwise fully advised. For the reasons that follow Defendant's Motion is denied.

I. BACKGROUND

On March 9, 2017, Defendant along with two co-defendants was charged by Indictment with two Counts:

Count 1, conspiracy with the intent to distribute a controlled substance, in violation of 46 U.S.C. § 70503(a)(1) and 46 U.S.C. § 70506(b). The controlled substance involved in the conspiracy was reasonably foreseeable to be five kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of 46 U.S.C. § 70506(a) and 21 U.S.C. § 960(b)(1)(B); and

Count 2, possession with the intent to distribute a controlled substance in violation of 46 U.S.C. § 70503(a)(1) and 18 U.S.C. § 2, involving five kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of 46 U.S.C. § 70503(a) and 21 U.S.C. § 960(b)(1)(B).

ECF No. [10] at 1-2.

Defendant pled guilty to Count 1 on May 31, 2017; Count 2 was dismissed. ECF Nos. [36], [58]. This Court granted Defendant's Motion for a Downward Variance, and sentenced Defendant to the mandatory minimum sentence of 120 months' imprisonment. ECF Nos. [48], [54], [58].

Defendant filed his first Motion for a reduction of sentence, Motion Under Fed. Rule 35(b), arguing that he provided substantial assistance to the Government and was promised a reduction of his sentence for his cooperation. ECF No. [78] at 1-2. This Court denied the motion, noting the relief sought may only be granted upon a motion by the Government, pursuant to Fed. R. Crim P. 35(b) which was not filed. ECF No. [81]. Defendant then filed a Motion to Compel Under Fed. Rule 35(b) seeking a response to his claim of substantial assistance to the Government. ECF No. [83]. The Government filed a response arguing that while Defendant and one codefendant “provided what information they had to law enforcement officials in an attempt to reduce their sentence” that information “did not rise to the level of ‘substantial assistance' warranting [] a Rule 35 Motion to Reduce Sentence.” ECF No. [86] at 1. This Court denied Defendant's motion, and his subsequent motion for reconsideration. ECF Nos. [87], [89]. Defendant filed a Notice of Appeal. ECF No. [90]. The Eleventh Circuit granted the Government's motion to dismiss the appeal as untimely. ECF No. [94].^[1] Id.^[2] The instant Motion comes after additional motions to reduce Defendant's sentence, and this Court's grant of Defendant's Motion to Appoint Counsel. ECF No. [111]. Defendant's Counsel filed the instant Motion, moving for a reduction pursuant to Amendment 821, 18 U.S.C. § 3582(c)(2) and U.S.S.G. §4C1.1. ECF No. [113]. Defendant argues Amendment 821(b) permits a reduction of his sentence because, at the time of his conviction, he was a zeropoint offender, and pursuant to § 4C1.1, “his sentence ought to be reduced, as a matter of law.” Id. ¶¶ 2, 3. Defendant seeks a two-point reduction to a new Offense Level of 31, with a Criminal History Category of I. Id. at 3. Defendant contends this equates to an advisory guideline range of 108 to 135 months of imprisonment and requests a revised sentence of 108 months. Id.

The Government responds the Motion should be denied as the statutory mandatory minimum sentence was imposed, and the subsequent First Step Act of 2018, Pub. L. No. 115-391 (the “First Step Act”) enacted after Defendant's guilty plea and sentencing cannot be applied retroactively. ECF No. [114] at 1-2. The Government argues U.S.S.G. § 5G1.1 does not permit sentencing below the statutory mandatory minimum sentence despite a defendant's calculated or recalculated sentencing guidelines range. Id. at 3.

II. LEGAL STANDARD

Amendment 821 issued by the Sentencing Commission created an adjustment provision in sentences for certain zero-point offenders. Pursuant to U.S.S.G. § 4C1.1, a defendant must meet all of the following criteria to be eligible for an adjustment by two levels for their sentencing guidelines range: (1) the defendant did not receive any criminal history points from Chapter Four, Part A; (2) the defendant did not receive an adjustment under §3A1.4 (Terrorism); (3) the defendant did not use violence or credible threats of violence in connection with the offense; (4) the offense did not result in death or serious bodily injury; (5) the instant offense of conviction is not a sex offense; (6) the defendant did not personally cause substantial financial hardship; (7) the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (8) the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights); (9) the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and (10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848. Id.

III. DISCUSSION

A. Mandatory Minimum Sentence at Time of Conviction

Defendant argues at the time of sentencing, his Sentencing Guideline was a Level 33, and as a zero-point offender, he had a criminal history category of I. ECF No. [113] at 1. Defendant states this resulted in an advisory guidelines range of 135 to 168 months of imprisonment, noting he was sentenced to 120 months with 5 years of supervised release. Id. at 1. Defendant does not address the statutory mandatory minimum sentence for the offense.

The Government responds that Defendant was sentenced to the statutory mandatory minimum of 120 months imprisonment after this Court granted Defendant's motion for a downward variance from his then advisory guidelines range of 135 to 168 months. ECF No. [114] at 2; see ECF No. [55]. The Government contends no district court can “sentence a defendant to a term less than the statutory minimum, ‘regardless of the defendant's advisory guidelines range.'” United States v. Jackson, 613 F.3d 1305, 1307 (11th Cir. 2010).

As an initial matter, this Court was obligated to sentence Defendant to no less than the mandatory minimum sentence of 120 months of imprisonment for the offense he pled guilty to in violation of the Maritime Drug Law Enforcement Act (“MDLEA”). The MDLEA forbids persons on certain vessels registered in foreign nations from both “‘possessing with intent to ... distribute a controlled substance § 70503(a) and conspiring to do the same § 70506(b).” United States v. Castillo, 899 F.3d 1208, 1212 (11th Cir. 2018) (cleaned up). “First-time offenders are subject to a mandatory minimum penalty of 10 years of imprisonment for a violation that “involv[es] ... [five] kilograms or more of a mixture or substance containing a detectable amount of [cocaine].” Id. citing 21 U.S.C. § 960(b)(1)(B)(ii) (“the person committing such violation shall be sentenced to a term of imprisonment of not less than 10 years and not more than life”).

In Castillo, as here, the defendant pled guilty to offenses under the MDLEA. The district court noted the defendant could not benefit from safety valve statutes. The Eleventh Circuit affirmed the sentence because “this Court has held that the safety valve does not apply to the [MDLEA].” 899 F.3d at 1211. In affirming, the court explained that “a statutory safety valve grants courts the authority to impose sentences below the statutory minimum for certain less-culpable defendants” but not defendants convicted under the MDLEA. Id. at 1212 (citation omitted) (emphasis added). Absent a grant of authority through a safety value statute, courts may not impose a sentence below the statutory mandatory minimum. Id. As the Eleventh Circuit held in 2018, “[t]his safety valve does not apply to offenses under the [MDLEA].” Id. at 1212.

The Eleventh Circuit then cited its prior holding in United States v. Petruz-Petruz, 679 F.3d 1327 (11th Cir. 2012) finding “the safety valve provision applies only to convictions under five specified offenses.” Id. at 1328. As no MDLEA offenses appeared in safety-value statues at the time, MDLEA offenses were excluded. Id. In Petruz-Petruz, the defendant committed offenses in violation of the MDLEA involving five or more kilograms of cocaine, for which the penalty provision under § 960(b)(1)(B) required a 10-year mandatory minimum sentence. Id. Although the defendant's sentencing guideline range would have been 108 to135 months of imprisonment, application of § 960(b)(1)(B) provided a 10-year mandatory minimum, resulting in a sentencing guideline range of 120 to 135 months. Id. The defendant was sentenced to 120 months of imprisonment. Id. On appeal, the Eleventh Circuit affirmed the mandatory minimum sentence imposed by the district court, noting the safety valve provisions were limited, the plain text of the statute controlled and applied to “five specified offenses” only. Id. (quoting United States...