United States v. Adalberto Vasquez-Liriano

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4389
_____________
UNITED STATES OF AMERICA
v.
ADALBERTO VASQUEZ-LIRIANO,
Appellant
_____________
On Appeal from the District
of the Virgin Islands
District Court No. 3-12-cr-00028-001
District Judge: The Honorable Curtis V. Gómez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 11, 2017
Before: SMITH, Chief Judge, McKEE, and SCIRICA, Circuit Judges
(Filed: January 16, 2018)
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OPINION*
_____________________
SMITH, Chief Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
Adalberto Vasquez-Liriano pleaded guilty in 2013 in the District Court of the
Virgin Islands to possession with intent to distribute five kilograms or more of cocaine
hydrochloride. He was sentenced to 120 months of imprisonment, followed by 60 months
of supervised release—the mandatory minimum sentence for his crime of conviction. 21
U.S.C. § 841(b)(1)(A). In 2014, and again in 2016, Vasquez-Liriano moved to reduce his
sentence, arguing that Amendment 782 to the U.S. Sentencing Guidelines made him
eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). In December 2016, the
District Court denied both motions. Vasquez-Liriano timely appealed the denial of his
motions. We will affirm.1
I.
Vasquez-Liriano argues he is eligible for a reduced sentence under 18 U.S.C.
§ 3582(c)(2), which provides that a court
may . . . [reduce] a term of imprisonment once it has been imposed . . . in
the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
A sentence is not “based on a sentencing range that has subsequently been
lowered” if the relevant change to the Sentencing Guidelines “does not have the effect of
1
The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a).
We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
legal interpretation of the Sentencing Guidelines and relevant statutes de novo; we review
the District Court’s ultimate ruling on a motion to reduce a sentence under 18 U.S.C.
§ 3852(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 & n.2 (3d
Cir. 2009).
2
lowering the defendant’s applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment).” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10 cmt. n.1(a);
United States v. Ortiz-Vega, 744 F.3d 869, 873 (3d Cir. 2014) (“[I]f a defendant is
subjected to a mandatory minimum, he or she would not be given a sentence ‘based on a
sentencing range that has subsequently been lowered.’ ”).
Vasquez-Liriano’s sentence was based on a mandatory minimum sentence
established by 21 U.S.C. § 841(b)(1)(A), not on a guideline range subsequently affected
by Amendment 782. Had Vasquez-Liriano been sentenced after Amendment 782 went
into effect, his sentence would have been unchanged.2 The mandatory minimum sentence
of 120 months’ imprisonment exceeds both the pre-Amendment guideline range of 87 to
108 months’ imprisonment, App. at 32, and the post-Amendment guideline range of 70 to
87 months’ imprisonment. See U.S.S.G. app. C, amend. 782 (applying a two-level
reduction to base offense level for certain drug offenses); U.S.S.G. Sentencing Table
(2012). Because Vasquez-Liriano’s mandatory minimum sentence exceeded both the pre-
and post-Amendment guideline ranges, the mandatory minimum sentence would become
the guideline sentence in either case. 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.”). Vasquez-
Liriano was sentenced based on a required minimum sentence, not a guideline range
3
subsequently lowered by the Sentencing Commission, and he is not eligible for a
reduction in his sentence.3
II.
Vasquez-Liriano also argues, for the first time on appeal, that he might qualify for
the “safety valve” of 18 U.S.C. § 3553(f), which would excuse him from the application
of the mandatory minimum sentence. Not only has Vasquez-Liriano never argued that the
safety valve applied to his case, he conceded at his sentencing hearing that it did not
apply. Counsel acknowledged that the safety valve did not apply, and that the mandatory
minimum sentence of ten years’ imprisonment controlled the sentencing range. App. at
29–31.
By explicitly waiving this argument at his sentencing hearing, Vasquez-Liriano is
foreclosed from making it now. See United States v. Batista, 483 F.3d 193, 199 n.4 (3d
Cir. 2007).
III.
We will affirm the District Court’s order denying Vasquez-Liriano’s motions to
reduce his sentence.
2
Vasquez-Liriano argues that the application of the “safety valve” provided by 18 U.S.C.
§ 3553(f), in combination with Amendment 782, could result in a reduced sentence below
the mandatory minimum. As we discuss below, the safety valve does not apply.
3
Vasquez-Liriano argues that, because the District Court did not make an explicit finding
under § 5G1.1(b) that the mandatory minimum sentence was the guideline sentence, the
District Court did not sentence him based on the mandatory minimum, but instead
sentenced him based on the guideline range of 87 to 108 months’ imprisonment with an
upward departure to 120 months’ imprisonment. Appellant’s Br. 10, 13. The District
Court was well aware of the mandatory minimum, and sentenced Vasquez-Liriano
accordingly. App. at 29, 32, 33.
4