USCA11 Case: 21-10005 Date Filed: 03/07/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10005
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS FRANCISCO ALVAREZ-RODRIGUEZ,
a.k.a. Corbata,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:13-cr-20618-FAM-4
____________________
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2 Opinion of the Court 21-10005
Before BRANCH, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Carlos Alvarez-Rodriguez appeals the district court’s denial
of his motion for a reduced sentence. We affirm.
Alvarez-Rodriguez pleaded guilty to conspiring to possess
with the intent to distribute five or more kilograms of cocaine. Al-
varez-Rodriguez’s base offense level was thirty-eight, but a “safety-
valve” provision reduced it by two levels. Because he pleaded
guilty, the offense level was reduced by another three levels for ac-
ceptance of responsibility, making his final offense level thirty-
three and his advisory guideline range 135 months to 168 months’
imprisonment.
While addressing the district court, though, Alvarez-Rodri-
guez minimized his role in the drug-smuggling operation, which
the district court described as “backpedaling.” Before imposing a
sentence, the district court said that “based upon what the defend-
ant [was] saying, [it] would be within the law to take away the ac-
ceptance of responsibility downward adjustment.” But it “would
not do that,” the district court explained, “because [Alvarez-Rodri-
guez] accepted responsibility at the time of the guilty plea.” The
district court denied Alvarez-Rodriguez’s motion for a downward
variance and gave him a bottom-of-the-guidelines sentence of 135
months’ imprisonment. In its statement of reasons, the district
court marked that it had accepted the presentencing investigation
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21-10005 Opinion of the Court 3
report—which included the three-level acceptance of responsibility
reduction—without change. Alvarez-Rodriguez did not appeal.
Three years later, Alvarez-Rodriguez moved to reduce his
sentence because he accepted responsibility. Although he said, sev-
eral times, that his motion should not be construed as one under
section 2255, Alvarez-Rodriguez argued that his lawyer was inef-
fective by failing to ensure proper application of the reduction. As
relief, Alvarez-Rodriguez requested that his sentence be reduced to
time served to address the disparity between his sentence and his
codefendants’ sentences.
The government opposed Alvarez-Rodriguez’s request.
First, the government contended that the district court should treat
Alvarez-Rodriguez’s motion as a motion to vacate under 28 U.S.C.
section 2255 and deny it as untimely. Second, it argued that Alva-
rez-Rodriguez’s motion was moot because he had already received
the three-level reduction for acceptance of responsibility. Third,
the government responded that the district court lacked authority
under section 3582(c) to reduce Alvarez-Rodriguez’s sentence.
The district court adopted the government’s response and denied
the motion.
On appeal, Alvarez-Rodriguez contends that the district
court erred in denying his motion because he was eligible for a
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4 Opinion of the Court 21-10005
reduced sentence under the First Step Act.1 Alvarez-Rodriguez ar-
gues that his sentence should have been reduced because he ac-
cepted responsibility and to address the unwarranted sentencing
disparity between him and his codefendants. But neither argument
provides a basis to reduce his sentence under the First Step Act.
Generally, there are two ways to get a sentence reduction
under the First Step Act. In the first way, a defendant sentenced
before August 3, 2010 for certain crack cocaine offenses may be el-
igible for a reduced sentence. See First Step Act of 2018, Pub. L.
No. 115-391, § 404(b)–(c),
132 Stat. 5194, 5222 (2018) (“A court that
imposed a sentence for a covered offense may . . . impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . .
were in effect at the time the covered offense was committed.”).
But Alvarez-Rodriguez isn’t eligible for a sentence reduction under
this part of the First Step Act because he was not sentenced for a
crack cocaine offense and he was not sentenced before August 3,
2010. Alvarez-Rodriguez was sentenced for a powder cocaine of-
fense and he was sentenced in May 2016.
In the second way, “a district court may reduce a term of
imprisonment if (1) the [section] 3553(a) sentencing factors favor
doing so, (2) there are ‘extraordinary and compelling reasons’ for
doing so, and . . . (3) doing so wouldn’t endanger any person or the
1
We review de novo “whether a district court had the authority to modify a
[defendant’s] term of imprisonment” under the First Step Act. United States
v. Jones,
962 F.3d 1290, 1296 (11th Cir. 2020).
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21-10005 Opinion of the Court 5
community within the meaning of [section] 1B1.13’s policy state-
ment.” United States v. Tinker,
14 F.4th 1234, 1237 (11th Cir.
2021). But “extraordinary and compelling” reasons are limited to
those consistent with the policy statement in section 1B1.13 of the
sentencing guidelines. See United States v. Bryant,
996 F.3d 1243,
1262 (11th Cir. 2021) (“[D]istrict courts may not reduce a sentence
under Section 3582(c)(1)(A) unless a reduction would be consistent
with 1B1.13.”). And Alvarez-Rodriguez’s reasons for a reduced
sentence—acceptance of responsibility and an unwarranted sen-
tencing disparity between codefendants—are not consistent with
section 1B1.13. See U.S.S.G. § 1B1.13 (listing medical condition,
advanced age, family circumstances, and other reasons as deter-
mined by the Director of the Bureau of Prisons).
Either way, Alvarez-Rodriguez was not eligible under the
First Step Act for a sentence reduction. And, because Alvarez-Ro-
driguez was not eligible under the First Step Act, we affirm the dis-
trict court’s order denying his sentence reduction motion.
AFFIRMED.
