United States v. Zayas-Ortiz , 808 F.3d 520 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 15-1449
UNITED STATES OF AMERICA,
Appellee,
v.
EMMANUEL ZAYAS-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Patricia A. Garrity, Research and Writing Specialist, Eric
A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres,
Supervisory Assistant Federal Public Defender, on brief for
appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Susan Z. Jorgensen, Assistant United States
Attorney, and Rosa Emilia Rodriguez-Velez, United States
Attorney, on brief for appellee.
December 11, 2015
STAHL, Circuit Judge. Following an amendment to the
United States Sentencing Guidelines, Defendant-Appellant
Emmanuel Zayas-Ortiz filed a motion for sentence reduction
pursuant to 18 U.S.C. § 3582(c). The motion was opposed by the
United States and the probation officer. The district court
denied the motion with a short form order. The defendant now
appeals. We affirm.
I. Facts & Background
On December 12, 2005, Emmanuel Zayas-Ortiz ("Zayas")
was charged, along with sixty-five co-defendants, with knowingly
and intentionally conspiring, combining, confederating, and
agreeing to possess, with intent to distribute, controlled
narcotics; specifically, five kilograms or more of cocaine,
fifty grams or more of cocaine base, and one kilogram or more of
heroin. Zayas eventually entered into a plea agreement with the
United States, which stipulated, inter alia, that Zayas was one
of the drug trafficking operation's leaders, that Zayas was an
"enforcer" and owned "drug points" where the illicit products
were sold, and that Zayas possessed a firearm in the course of
the offense.
Consistent with this agreement, the parties
recommended the following sentencing calculations under the
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United States Sentencing Guidelines Manual ("U.S.S.G." or "the
guidelines"): Zayas would receive a base offense level of
thirty-eight for violations of 18 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. Pursuant to U.S.S.G. § 3B1.1, Zayas
would receive a two-level enhancement for his leadership role in
the conspiracy, and, pursuant to U.S.S.G. § 2D1.1, he would
receive another two-level enhancement for the use of firearms
within the conspiracy. These increases would be partially
offset by a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a
total adjusted offense level of thirty-nine and yielding an
imprisonment range of 262 to 327 months. The parties agreed to
recommend a term of imprisonment of 264 months. The probation
officer prepared a Pre-Sentence Report ("PSR") with calculations
mirroring those found in the plea agreement.
On January 17, 2007, the district court sentenced
Zayas at the bottom of the guidelines range to a term of
imprisonment of 262 months and a supervised release term of five
years. That judgment was appealed and subsequently affirmed by
this Court.
This recitation is merely background for purposes of
the instant appeal. On March 9, 2009, Zayas filed his first
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motion to reduce his sentence under 18 U.S.C. § 3582(c),
pursuant to amendments 706 and 711 to the guidelines. The
government stipulated to the reduction, which resulted in a two-
point offense level decrease, an adjusted offense level of
thirty-seven, and an amended sentencing range of 210 to 262
months. The district court granted the motion, sentencing Zayas
at the bottom of the now-amended guidelines range to a term of
imprisonment of 210 months.
The district court was faced with a case of déjà vu
when, on December 20, 2011, Zayas filed a second motion to
reduce his sentence under 18 U.S.C. § 3582(c), this time
pursuant to amendments 748 and 750 to the guidelines. The
government again stipulated to the reduction, which resulted in
another two-point offense level decrease, an adjusted offense
level of thirty-five, and an amended sentencing range of 168 to
210 months. The district court granted the motion, sentencing
Zayas at the bottom of the amended guidelines range to a term of
imprisonment of 168 months.
On November 7, 2014, the court then faced "déjà vu all
over again," as the late Yogi Berra might have said, when the
defendant filed his third motion to reduce his sentence under 18
U.S.C. § 3582(c), this time pursuant to amendments 782 and 788
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to the guidelines. This reduction would have resulted in yet
another two-point offense level decrease, an adjusted offense
level of thirty-three, and a sentencing range of 135 to 168
months. But this time there was a twist. Rather than
stipulating to the reduction, both the government and the
probation officer opposed the motion, citing the defendant's
leadership and enforcement roles, ownership of drug points, and
possession of a dangerous weapon in the course of the offense
conduct.
In response, the defendant urged the district court to
reject the government's position. The defendant argued that
these factors had already been accounted for when the sentence
was initially imposed and did not, taken alone, reflect any
increased danger to public safety. The defendant also noted his
positive disciplinary record and rehabilitative efforts in
prison.
On March 16, 2015, the district court denied the
motion using a form order. The form states, in relevant part
that, "having considered [the defendant's] motion, and taking
into account the policy statement set forth at [U.S.S.G.]
§ 1B1.10 and the sentencing factors set forth in 18 U.S.C.
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§ 3553(a), to the extent that they are applicable, . . . the
motion is DENIED." This appeal followed.
II. Analysis
"'[A] judgment of conviction that includes [a sentence
of imprisonment] constitutes a final judgment' and may not be
modified by a district court except in limited circumstances."
Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18
U.S.C. § 3582(b)). The district court's power under
§ 3582(c)(2) to reduce the prison term of a defendant who was
sentenced based on a guidelines range that has subsequently been
lowered by the United States Sentencing Commission (the
"Commission") constitutes one such "exception to the general
rule of finality" governing such sentences. Id.
District courts proceeding under § 3582(c)(2) follow a
two-step approach. United States v. Candelaria-Silva, 714 F.3d
651, 656 (1st Cir. 2013). First, the court determines "the
prisoner's eligibility for a sentence modification and the
extent of the reduction authorized." Id. (quoting Dillon, 560
U.S. at 827). At this stage, "the court considers whether it
has the legal authority to grant the reduction requested; thus,
its conclusions of law are reviewed de novo, and its factual
findings, for clear error." Id.
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Second, the court "consider[s] any applicable
§ 3553(a) factors and determine[s] whether, in its discretion,
the reduction . . . is warranted in whole or in part under the
particular circumstances of the case." Dillon, 560 U.S. at 827.
"Decisions at this stage are reviewed for abuse of discretion,
as the question whether to reduce a final sentence pursuant to
§ 3582(c)(2) 'is a matter [Congress] committed to the sentencing
court's sound discretion.'" Candelaria-Silva, 714 F.3d at 656
(quoting United States v. Aponte–Guzmán, 696 F.3d 157, 159–61
(1st Cir. 2012)). As such, even where the first step has been
met, and the defendant has been determined eligible to seek a
§ 3582(c) reduction, "the district judge may conclude that a
reduction would be inappropriate." Freeman v. United States,
131 S. Ct. 2685, 2694 (2011).
Zayas contends that the district court abused its
discretion by failing to consider the § 3553(a) factors and by
failing to give sufficient reasons for its decision.1 He claims
1
The government urges us to consider the defendant's
argument waived because he failed to sufficiently cite or
develop the argument in his brief. We assume without deciding
that Zayas did not waive his argument. It is a "settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
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that one cannot discern what factors, if any, the court relied
on in denying his motion. According to Zayas, "no reasons
whatsoever were given by the district court in its order denying
[his] motion and there is no correlation to the statutory
factors set forth in § 3553(a)." This, the defendant contends,
was an error of law necessarily constituting an abuse of
discretion. See United States v. Caraballo, 552 F.3d 6, 8 (1st
Cir. 2008) ("A material error of law is perforce an abuse of
discretion.").
Despite the district court's admittedly Spartan denial
order, the defendant's argument comes up short.2 Zayas himself
acknowledges that the judge is not required to articulate the
applicability of each factor, "as long as the record as a whole
'demonstrates that the pertinent factors were taken into account
Cir. 1990). As this Court has noted, "[i]t is not enough merely
to mention a possible argument in the most skeletal way, leaving
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones." Id. This rule is
commonly deployed, however, against ancillary arguments tossed
carelessly against the wall in the hope that one might stick.
Despite the paucity of authority offered by the appellant in
support of his position, we need not explore the contours of
this convention, for the appeal fails on the merits.
2
The parties do not truly contest the defendant's
eligibility for the reduction under step one of the analysis, so
we proceed directly to step two.
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by the district court.'" United States v. Vautier, 144 F.3d
756, 762 (11th Cir. 1998) (quoting United States v. Eggersdorf,
126 F.3d 1318, 1322 (11th Cir. 1997)). In the sentencing
context, we have held that a judge's statement that he has
considered the relevant § 3553(a) factors "is entitled to
significant weight." United States v. Santiago-Rivera, 744 F.3d
229, 233 (1st Cir. 2014) (citing United States v. Dávila–
González, 595 F.3d 42, 49 (1st Cir. 2010)). Zayas has offered
no reason why this rule should not apply with equal force in the
§ 3582(c) context.
Here, the district court utilized a form order that
explicitly states that the judge "[took] into account the policy
statement set forth at [U.S.S.G.] § 1B1.10 and the sentencing
factors set forth in 18 U.S.C. § 3553(a)[.]" Zayas derides this
as "stock language," but fails to provide any rationale as to
why the judge must type this phase afresh for each and every
reduction order rather than saving himself the effort by relying
upon a form prepared for this very purpose.
Moreover, the record as a whole is sufficient for us
to infer the pertinent factors taken into account by the court
below. United States v. Rodriguez-Rivera, 473 F.3d 21, 29 (1st
Cir. 2007) ("[A] court's reasoning can often be inferred by
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comparing what was argued by the parties or contained in the
pre-sentence report with what the judge did.") (quoting United
States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en
banc)). The government opposed the motion based on public
safety concerns and argued that a reduction would not be
appropriate given the defendant's leadership and enforcement
roles, ownership of drug points, and possession of a dangerous
weapon in the course of the offense conduct. The probation
officer's recommendation echoed this assessment. The need for a
sentence to protect the public is, of course, one of the
§ 3553(a) factors. See § 3553(a)(2)(C) ("The court, in
determining the particular sentence to be imposed, shall
consider . . . the need for the sentence imposed . . . to
protect the public from further crimes of the
defendant . . . ."). In fact, Zayas finds himself awkwardly
arguing that "[n]either [the defendant's] motion nor the
government's response discussed factors relevant to the
§ 3553(a) inquiry (aside from public safety concerns)."
(emphasis added). This is somewhat akin to a restauranteur
advising an allergic patron that his meal contains no shellfish
(aside from shrimp).
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Perhaps aware of his weak position, the defendant
advances one final argument. Zayas says that if the public
safety factor was determinative, then the district court would
not have granted his two prior reductions; ergo, the court could
not have denied his third reduction on the basis of public
safety. While this argument is worth considering, it is more
sauce than substance. There is nothing incongruent about
believing that successive reductions in a defendant's sentence
are only warranted up to a point. The district court was
entitled to determine that a reduction from 262 months to 210
months was warranted, and that a reduction from 210 months to
168 months was warranted, but that a reduction from 168 months
to 135 months would be the proverbial bridge too far.
The defendant must remember that the Commission's
authorization of a discretionary reduction "does not entitle a
defendant to a reduced term of imprisonment as a matter of
right." U.S.S.G. § 1B1.10 cmt. background. Rather, the final
decision is entrusted to "the sound discretion of the court."
Id. Although the Commission's amendments reflect a generalized
determination that the reduction "should not jeopardize public
safety," U.S.S.G. supplement to app. C amend. 782, the
amendments also recognize the court's role in conducting an
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individualized assessment into whether retroactive application
is warranted on a case-by-case basis, see U.S.S.G. supplement to
app. C amend. 788 ("[P]ublic safety will be considered in every
case . . . in determining whether . . . a reduction in the
defendant's term of imprisonment is warranted . . . .") (citing
U.S.S.G. § 1B1.10, cmt. n.1(B)(ii)) (emphasis added).
In short, the record adequately reflects the basis
upon which the defendant's motion was denied. We recognize that
the court could have expounded further upon the basis for its
decision. Even a single sentence incorporating the government's
or probation officer's position might have spared this case a
trip to the seat of the First Circuit and all the attendant
effort and expense associated therewith. However, on this
record, we cannot say that the court abused its discretion in
denying the defendant's motion.
III. Conclusion
For the foregoing reasons, the judgment is AFFIRMED.
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