United States v. Lauro Aguilar-Canche , 835 F.3d 1012 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-30209
Plaintiff-Appellee, 15-30210
v. D.C. Nos.
2:08-cr-00130-RBL-1
LAURO AGUILAR-CANCHE, 3:06-cr-05351-RBL-7
AKA Lauro Aquillar-
Canche, AKA Lauro Ivan
Aquilar-Canche, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 7, 2016
Seattle, Washington
Filed August 29, 2016
Before: ANDREW J. KLEINFELD, M. MARGARET
McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. AGUILAR-CANCHE
SUMMARY*
Criminal Law
Affirming the district court’s denial of a motion pursuant
to 18 U.S.C. § 3582(c)(2) for reduction of sentences in light
of Sentencing Guidelines Amendment 782, the panel held
that the consecutive nature of sentences is not modifiable
pursuant to § 3582(c)(2).
The panel wrote that the sentences, for which the district
court imposed the mandatory minimums at a consolidated
sentencing hearing, were not “based on” a subsequently-
amended Guideline range, and that the district court was not
authorized under § 3582(c)(2) to reconsider their consecutive
nature.
COUNSEL
Dennis Carrol (argued), Assistant Federal Public Defender,
Federal Public Defender’s Office, Seattle, Washington, for
Defendant-Appellant.
Helen J. Brunner (argued), First Assistant United States
Attorney; Annette L. Hayes, United States Attorney; United
States Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. AGUILAR-CANCHE 3
OPINION
M. SMITH, Circuit Judge:
In 2008, Lauro Aguilar-Canche pleaded guilty in two
separate federal drug distribution cases. The district court, in
a consolidated sentencing proceeding, imposed the mandatory
minimum sentence for each plea, and ordered that the
sentences be served consecutively. In 2015, Aguilar-Canche
moved for a reduction in sentence based on an amendment to
the United States Sentencing Guidelines. We affirm the
district court’s denial of that motion because the sentences
were not “based on” a subsequently-amended Guideline
range.
FACTS AND PRIOR PROCEEDINGS
In 2005, Aguilar-Canche was pulled over in Nebraska for
a traffic stop. During the stop, police searched his car and
discovered 620 grams of a substance containing
methamphetamine and 973 net grams of cocaine. He was
charged in the District of Nebraska with possession and intent
to distribute cocaine and methamphetamine. The Nebraska
court released him on bond to the Western District of
Washington, with the requirement that he wear an electronic
ankle bracelet while he awaited trial. While he was on
supervised release in Washington, he was implicated in
another drug distribution investigation. Law enforcement in
Washington obtained a search warrant for Aguilar-Canche’s
residence, where they found him sleeping in a bedroom
containing 212.4 net grams of a substance containing
methamphetamine, 123.7 net grams of cocaine, ten cell
phones, a digital scale “used for weighing narcotics,” and
$3,178 in cash. At the time of his arrest, Aguilar-Canche was
4 UNITED STATES V. AGUILAR-CANCHE
still wearing the ankle bracelet that was a condition of his
Nebraska release. He was arrested and charged in the Western
District of Washington with conspiracy to distribute
methamphetamine, cocaine, and heroin, as well as possession
of methamphetamine and cocaine with intent to distribute.
The Nebraska case was transferred to the Western District of
Washington and the two cases were consolidated.
In the Nebraska case, Aguilar-Canche pleaded guilty to
one count of possession of methamphetamine and cocaine
with intent to distribute pursuant to 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A). In the Washington case, he pleaded guilty to
one count of possession of methamphetamine with intent to
distribute pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B).
As the district court noted, this plea deal was very much to
Aguilar-Canche’s potential benefit. The government agreed
to dismiss all of the other charges; the plea preserved his
eligibility for safety-value sentencing relief;1 and the
consolidated nature of the plea “took off the table the
possibility that the government would obtain a conviction in
one case, and then use that conviction to enhance [his]
mandatory minimum in the other.” In both plea agreements,
the government offered no assurances as to the sentence
Aguilar-Canche might receive, and explicitly stated that the
district court would independently determine his sentence.
Aguilar-Canche was advised of the statutory minimum and
maximum sentences for both charges. The Nebraska charge
1
Aguilar-Canche did apply for safety-valve sentencing relief. The
government recommended against it on the grounds that his story
explaining away his involvement in drug distribution was “incredible,”
that he lied about being a gang member, and that he was involved in a
scheme to bribe a guard and smuggle contraband into the detention facility
while he was in custody. The district court ruled that he was not eligible
for safety-valve relief.
UNITED STATES V. AGUILAR-CANCHE 5
carried a mandatory minimum sentence of ten years in prison,
and a maximum sentence of life in prison. See 21 U.S.C.
§ 841(b)(1)(A). The Washington charge carried a mandatory
minimum of five years in prison, and a maximum sentence of
forty years in prison. See 21 U.S.C. § 841(b)(1)(B).
Aguilar-Canche’s advisory Guideline range for the
combined offenses was 135 to 168 months in prison. With
mandatory minimum sentences of 120 months for the
Nebraska charge and 60 months for the Washington charge,
it is evident that if the sentences were to run concurrently, the
total prison time (120 months) would be below the Guideline
range, and if they were to run consecutively, the total prison
time (180 months) would be above the Guideline range. Thus,
the district court’s decision with regard to whether the
sentences would run concurrently or consecutively
determined whether Aguilar-Canche received a sentence
above or below the Guideline range.
At the sentencing hearing, the prosecution asked for a
“lengthy sentence” of 180 months. The prosecutor noted that
the court could divide the mandatory minimum sentences “up
however [it] want[ed],” but argued that sentencing Aguilar-
Canche to consecutive 120-month and 60-month sentences on
the Nebraska and Washington charges “ma[de] sense.” The
prosecutor noted that another option would be to sentence
“180 months on Nebraska,” which was still within the
statutory range, “and whatever you want” on the Washington
charges and run the two sentences concurrently, which would
reach the same result but with concurrently running
sentences. The district court determined that imposing
consecutive mandatory minimum sentences for each offense
would be “cleaner.”
6 UNITED STATES V. AGUILAR-CANCHE
Furthermore, the probation officer noted that an above-
Guideline sentence would be in the interest of justice and
would avoid a disproportionately low sentence. Specifically,
the drug quantities at issue in Nebraska alone yielded the
same Guideline level as the combined drug quantities in both
the Nebraska and Washington cases. To follow the Guideline
range, the officer argued, would “essentially . . . discount[]
the reoffend.”
The district court next considered the sentencing factors
in 18 U.S.C. § 3553(a), and concluded that an aggregate
sentence that was above the Guideline range was warranted.
It did not think Aguilar-Canche was “one of those good
people who simply made a mistake,” because he violated his
bond immediately “after telling the judge in Nebraska that
he’s going to straighten up and fly right.” The court also
noted that the offense was particularly serious because “[t]he
amount of meth involved in these offenses is stunning,” and
that it “really, really affects communities and individuals in
an adverse way.” Due to Aguilar-Canche’s “continuous
flaunting of the law,” the court sentenced Aguilar-Canche to
120 months on the Nebraska charge and 60 months on the
Washington charge, to be served consecutively.
Aguilar-Canche appealed both sentences, and we
affirmed. We held that the district court “conducted a well-
reasoned and balanced analysis of the 18 U.S.C. § 3553(a)
sentencing factors, and the sentence imposed is substantively
reasonable.” United States v. Aguilar-Canche, 362 F. App’x
618 (9th Cir. 2010).2
2
After his direct appeal, Aguilar-Canche filed a habeas petition pursuant
to 28 U.S.C. § 2255(a), alleging that the judge who oversaw his guilty plea
“improperly pressured him into pleading guilty” and that he received
UNITED STATES V. AGUILAR-CANCHE 7
In 2014, Aguilar-Canche filed a motion in the district
court, requesting that his sentences be modified to run
concurrently rather than consecutively. He invoked 18 U.S.C.
§ 3582(c)(2), which allows for a term of imprisonment to be
modified if it was “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
The sentencing-range amendment that Aguilar-Canche relied
on in this motion was the amended U.S.S.G. § 4A1.2(a)(2),
which, as the district court noted, “deals with how . . .
sentences imposed before the offense of conviction . . . are
dealt with in calculating a Defendant’s Criminal History
Category.” At the original sentencing, Aguilar-Canche had no
criminal history at all, so the amendment to U.S.S.G.
§ 4A1.2(a)(2) would not have affected his sentence. Because
the amendment to U.S.S.G. § 4A1.2(a)(2) had “nothing to do
with determining whether sentences should run concurrent[ly]
or consecutive[ly] in the first instance,” the district court
denied the motion. In August 2014, we summarily affirmed
the district court’s order, concluding “that the questions
raised . . . are so insubstantial as to not require further
argument.” United States v. Aguilar-Canche, Nos. 14-30023,
14-30024 (Aug. 26, 2014).
In April 2015, Aguilar-Canche filed another motion for
modification pursuant to 18 U.S.C. § 3582(c)(2), based on
another amendment to the Sentencing Guidelines. That
motion was based on Amendment 782, which amended the
drug-quantity table in U.S.S.G. § 2D.1.1. The amendment
reduced by two levels the offense levels assigned to drug
ineffective assistance of counsel. Aguilar-Canche v. United States, No.
C10-5100, 2010 WL 4063281, at *2 (W.D. Wash. Oct. 15, 2010). The
district court denied his habeas petition and denied a certificate of
appealability. Id. at *3.
8 UNITED STATES V. AGUILAR-CANCHE
quantities that trigger statutory minimum standards, and is to
be applied retroactively. U.S.S.G. supp. app. C. Pursuant to
the amended Guideline, Aguilar-Canche’s offense level
would have been two levels lower than originally calculated.
The corresponding sentencing range would have been 120 to
135 months, not 135 to 160 months. Like the amendment to
U.S.S.G. § 4A1.2(a)(2), the basis for Aguilar-Canche’s
previous motion for modification, Amendment 782 does not
address whether two sentences should run concurrently or
consecutively. The district court denied the motion, ruling
that “[n]othing in Amendment 782 compels the Court to
revisit its earlier sentence.” Aguilar-Canche then filed this
timely appeal.
ANALYSIS
As a general matter, a trial court “may not modify a term
of imprisonment once it has been imposed.” 18 U.S.C.
§ 3582(c); Dillon v. United States, 560 U.S. 817, 824 (2010)
(“[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.”
(alterations in original, internal quotation marks omitted)).
The statute includes a few exceptions to this general rule. At
issue here is the one providing that a sentence may be
modified where the defendant “has been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). In such cases, the “court may reduce
the term of imprisonment, after considering the factors set
forth in section 3553(a) to the extent they are applicable, if
such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission” in
U.S.S.G. § 1B1.10. Id. The statute therefore creates a two-
UNITED STATES V. AGUILAR-CANCHE 9
step inquiry. “A court must first determine that a reduction is
consistent with § 1B1.10 before it may consider whether the
authorized reduction is warranted, either in whole or in part,
according to the factors set forth in § 3553(a).” Dillon,
560 U.S. at 826.
The Sentencing Guidelines policy statement provides that
“the court shall determine the amended guideline range that
would have been applicable to the defendant if the
amendment(s) to the guidelines . . . had been in effect at the
time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1).
“In making such determination, the court shall substitute only
the amendments . . . for the corresponding guideline
provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
decisions unaffected.” Id.
Aguilar-Canche argues that his requested modification is
consistent with the policy statement because Amendment
782, if it had been in effect at the time he was sentenced,
would have yielded a lower Guideline range than the one
before the district court. Further, he reads the phrase “shall
leave all other guideline application decisions unaffected” to
mean that the district court can (and in fact, must) reconsider
all other, non-Guideline decisions that led to the sentence—in
this case, the decision that the sentences run consecutively.
The essence of Aguilar-Canche’s argument is that once a
Guideline range is lowered, it opens the door for the district
court to reconsider its entire sentence, except for “other
guideline application decisions” which are not directly
adjusted by the amendment. We reject this interpretation of
the statute and corresponding policy statement.
10 UNITED STATES V. AGUILAR-CANCHE
Aguilar-Canche’s argument focuses exclusively on the
language in the policy statement that the district court “shall
leave all other guideline application decisions unaffected.”
U.S.S.G. § 1B1.10(b). It ignores the threshold statutory
requirement in § 3582(c)(2), which limits the exception to
situations where the defendant “has been sentenced to a term
of imprisonment based on a sentencing range that has been
subsequently lowered.” 18 U.S.C. § 3582(c)(2) (emphasis
added).
The Supreme Court has cautioned that the exception to
sentencing finality in § 3582(c)(2) is “narrow [in] scope,” and
is “intended to authorize only a limited adjustment to an
otherwise final sentence and not a plenary resentencing
proceeding.” Dillon, 560 U.S. at 826. By its terms,
§ 3582(c)(2) is only available to modify a sentence that was
“based on” a subsequently lowered Guideline range. The
Court has held that this narrow scope is consistent with the
policy statement. “[T]he policy statement seeks to isolate
whatever marginal effect the since-rejected Guideline had on
the defendant’s sentence.” Freeman v. United States,
564 U.S. 522, 530 (2011). “Working backward from this
purpose, § 3582(c) modification proceedings should be
available to permit the district court to revisit a prior sentence
to whatever extent the sentencing range in question was a
relevant part of the analytic framework the judge used to
determine the sentence.” Id.
In this case, the since-rejected Guideline range of 135 to
168 months was not a relevant part of the analytic framework
the judge used to determine the sentence. In fact, the district
court applied the statutory minimum sentence to each charge,
not the Guideline range. While the Guideline ranges are
advisory, United States v. Booker, 543 U.S. 220, 245 (2005),
UNITED STATES V. AGUILAR-CANCHE 11
the statutory minimum and maximums are mandatory and
trump any Guideline range. U.S.S.G. § 5G1.1(b) (“Where a
statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline
sentence.”); see Edwards v. United States, 523 U.S. 511, 515
(1998) (“[A] maximum sentence set by statute trumps a
higher sentence set forth in the Guidelines.”).
Aguilar-Canche is correct that the district court could
have exercised its discretion and ruled that the two
mandatory-minimum sentences run concurrently, for a total
of 120 months. That sentence would have been lower than the
Guideline range at the time of sentencing, and at the bottom
of the Guideline range after Amendment 782. He also
concedes that his motion is a request that “the trial court
reconsider the consecutive nature of the sentence in light of
the reduced guideline range.” However, the consecutive
nature of the sentence is unrelated to the “marginal effect the
since-rejected Guideline had on the defendant’s sentence.”
See Freeman, 564 U.S. at 530. It is theoretically possible, of
course, that if the district court in 2008 had been presented
with the lower Guideline range, the lower numbers might
have influenced it in some way to be more lenient when it
came to the consecutive nature of the sentence. But this is
entirely speculative. If we were to accept Aguilar-Canche’s
statutory argument, we would open the door to a “plenary
resentencing proceeding,” even where the connection
between the lowered Guideline range and the challenged
sentencing decision is tenuous. Cf. Dillon, 560 U.S. at 826.
We therefore hold that the district court was not authorized by
§ 3582(c)(2) to reconsider the consecutive nature of Aguilar-
Canche’s sentences.
12 UNITED STATES V. AGUILAR-CANCHE
Although the rulings of other circuits are not binding
upon us, we note that the reasoning underlying our holding is
substantially similar to the reasoning of the D.C. Circuit’s
opinion in United States v. Dunn, 631 F.3d 1291 (D.C. Cir.
2011). In Dunn, the defendant was convicted of both a drug
charge and second-degree murder. Id. at 1291. He was
sentenced in federal court to 121 months in prison for the
drug charge, which was “at the low end” of the Guideline
range, and 15 years to life in prison for the murder charge in
D.C. Superior Court. Id. at 1292. The two sentences were to
be served consecutively. Id. Sixteen years later, the
Sentencing Commission retroactively amended the
Guidelines on the drug charge, with a new Guideline range of
97 to 121 months. Id. The district court reduced the drug
sentence “to the statutory minimum of 120 months, but
concluded that it lacked authority to change the consecutive
nature of [Dunn’s] sentences.” Id. (citation omitted). The
D.C. Circuit affirmed, ruling that Dillon’s prohibition on
plenary resentencing “made clear that a court’s authority in
a sentence-reduction proceeding is strictly limited to
shortening the length of a prison term and does not extend to
collateral matters unrelated to the Guidelines change,” which
includes the consecutive nature of the sentences. Id. at 1293.
Aguilar-Canche attempts to distinguish Dunn on the basis
that it “involved an undischarged term of imprisonment for a
separate case in a separate court.” Dunn had been charged
with murder in D.C. Superior Court, and was on pre-trial
release when he was arrested on the federal drug offense.
Aguilar-Canche, by contrast, was charged with a drug offense
in the District of Nebraska and while on pre-trial release for
that offense, charged with a second drug offense in the
Western District of Washington. However, Aguilar-Canche
does not explain why this distinction should cause us to come
UNITED STATES V. AGUILAR-CANCHE 13
to a different interpretation of the statute. The crux of Dunn’s
holding (with which we agree) is that a court’s decision to run
sentences consecutively is unrelated to a subsequent
Guideline change, and is thus not modifiable pursuant to
§ 3582(c)(2).
Aguilar-Canche’s final argument is that the result here is
an absurd one, because the sentencing court could have
chosen to impose a sentence of 180 months for the Nebraska
charge and 0 months for the Washington charge to run
concurrently. If it had done so, Aguilar-Canche would have
an easier time using the amended Guideline range to
challenge the total length of his sentences pursuant to
§ 3582(c)(2). True, the district court might have taken this
option—but it did not. Moreover, we have held in a previous
appeal that the two sentences, including the ruling that they
run consecutively, were substantively reasonable. The
consecutive nature of the sentences is not modifiable
according to § 3582(c)(2) because it was not “based on” the
Guideline range, notwithstanding the fact that it might have
been if the district court had chosen to impose a different
sentence.
CONCLUSION
The district court’s denial of Aguilar-Canche’s motion for
reduction in sentence is AFFIRMED.