United States v. Angulo-Lopez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 12, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v. No. 13-6251
(D.C. No. 5:91-CR-00220-D-6)
JUAN CARLOS ANGULO-LOPEZ, (W.D. Okla.)
Defendant–Appellant.
ORDER AND JUDGMENT*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Juan Carlos Angulo-Lopez appeals the district court’s denial of his motion to
modify his sentence pursuant to 18 U.S.C. § 3582. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
I
In 1993, this court affirmed Angulo-Lopez’s convictions on eleven counts of drug
trafficking. United States v. Angulo-Lopez, 7 F.3d 1506, 1508, 1512 (10th Cir. 1993),
superseded on other grounds as recognized in United States v. Kissick, 69 F.3d 1048
(10th Cir. 1995) (abrogated on other grounds as recognized in United States v. Horey,
333 F.3d 1185 (10th Cir. 2003)). We stated that “[t]he evidence established that Mr.
Angulo-Lopez was involved in a conspiracy to distribute 47.82 kilograms of cocaine
base.” Id. at 1509. He was sentenced to two concurrent life sentences.
After the United States Sentencing Commission made Amendment 706 to the
United States Sentencing Guidelines retroactive, Angulo-Lopez moved to reduce his
sentence pursuant to § 3582(c)(2). United States v. McGee, 615 F.3d 1287, 1290 (10th
Cir. 2010) (consolidated appeal, noting that Amendment 706 altered the Drug Quantity
Table in the United States Sentencing Guidelines to provide a reduction in base offense
levels for crack-cocaine-related offenses). We affirmed the district court’s denial of
Angulo-Lopez’s motion. Id. at 1290, 1293. In 2012, Angulo-Lopez filed a pro se motion
for a modification of his sentence under § 3582(c)(2), seeking relief under Sentencing
Guidelines Amendment 750. The district court denied the motion. Angulo-Lopez
appeals.
II
“Amendment 750 retroactively implemented the Fair Sentencing Act, which
reduced the disparity between crack and powder cocaine sentences from 100:1 to 18:1.”
United States v. Wilkerson, 485 F. App’x 318, 320 (10th Cir. 2012) (unpublished). “The
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amendment altered the drug-quantity tables in the Guidelines, increasing the required
quantity to be subject to each base offense level in a manner proportionate to the statutory
change to the mandatory minimums effectuated by the” Fair Sentencing Act. United
States v. Osborn, 679 F.3d 1193, 1194 (10th Cir. 2012) (quotation omitted). However,
[i]n determining whether, and to what extent, a reduction in the defendant’s
term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy
statement is warranted, the court shall determine the amended guideline
range that would have been applicable to the defendant if the amendment(s)
to the guidelines listed in subsection (c) had been in effect at the time the
defendant was sentenced. In making such determination, the court shall
substitute only the amendments listed in subsection (c) for the
corresponding guideline provisions that were applied when the defendant
was sentenced and shall leave all other guideline application decisions
unaffected.
U.S.S.G. § 1B1.10(b)(1). “Amendment 750 ‘does not lower the sentences for offenses’
that involve ‘8.5 kilograms or more’ of crack cocaine.” United States v. McIntyre, 470 F.
App’x 717, 718 (10th Cir.) (unpublished) (quoting U.S.S.G. app. C, amend. 750 cmt.),
cert. denied, 133 S. Ct. 492 (2012).
“Under § 1B1.10(a)(2)(B), a sentence reduction is not authorized if the
amendment at issue ‘does not have the effect of lowering the defendant’s applicable
guideline range.’” United States v. Darton, 595 F.3d 1191, 1194 (10th Cir. 2010); see
also Dillon v. United States, 560 U.S. 817, 821 (2010) (“Any reduction must be
consistent with applicable policy statements issued by the Sentencing Commission.”).
“[D]istrict courts cannot recalculate aspects of a sentence that are unaffected by a
retroactively applicable amendment to the Guidelines.” United States v. Battle, 706 F.3d
1313, 1317 (10th Cir. 2013). Because Angulo-Lopez’s sentence was based on 47.82
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kilograms of cocaine base, far above the quantity affected by Amendment 750, the
amendment did not have the effect of lowering his Guidelines range. The district court
was therefore correct in determining that a sentence reduction was not authorized.
III
For the foregoing reasons, the order of the district court is AFFIRMED.1 Angulo-
Lopez’s motion to proceed in forma pauperis on appeal is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
Angulo-Lopez filed a document titled “Request to Take Judicial Notice,” in
which he requested that this court take notice that the government did not file a brief. We
construe the document as a motion, but note as a factual matter that the government filed
a brief in this case. Therefore the motion is DENIED. We also note that the document
contains language that could be interpreted as an abandonment of this appeal. Because
Angulo-Lopez references another case number and is proceeding pro se, we have
addressed the appeal on the merits. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (“A document filed pro se is to be liberally construed . . . .” (quotation omitted))
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