USA v. Jesus Arrate-Rodriguez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12405
Non-Argument Calendar
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D.C. Docket No. 0:90-cr-06158-DTKH-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ARRATE-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 26, 2016)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Jesus Arrate-Rodriguez appeals the denial of his motion to reduce his
sentence under Amendment 782 to the Sentencing Guidelines. 18 U.S.C.
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§ 3582(c)(2). Arrate-Rodriguez argues that the district court erred by stating that he
was “ineligible” for a sentence reduction; weighing heavily the nature and
circumstances of his offenses; failing to consider his post-sentencing conduct; and
failing to conduct an evidentiary hearing. We affirm.
A jury convicted Arrate-Rodriguez of two counts of conspiring to import
cocaine into the United States in 1990, 21 U.S.C. §§ 952(a), 960(a)(1), 963, and
one count of conspiring to murder or attempting to murder and cause bodily harm
to a confidential informant to prevent him from testifying in an official proceeding
and to retaliate for providing information to a law enforcement officer, 18 U.S.C.
§§ 1512(a)(1)(A), 1513(a)(2). Arrate-Rodriguez’s presentence investigation report
provided a sentence of life imprisonment based on his criminal history of I and a
base offense level of 42 for importing more than 1,500 kilograms of cocaine,
U.S.S.G. § 2D1.1(c)(1), that was increased by four levels because he was a leader
of a conspiracy that transported 2,114 kilograms of cocaine from Colombia to
Panama and then to the United States, id. § 3B1.1(a). Although Arrate-Rodriguez
did not object to the enhancement, the district court mentioned at sentencing that
Arrate-Rodriguez faced a sentence of life imprisonment regardless of whether he
had a lesser role enhancement or whether his offense level had not been enhanced,
which would result in an advisory guideline range of 360 months to life. The
district court applied the four-level enhancement and sentenced Arrate-Rodriguez
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to two terms of life imprisonment for conspiring to import cocaine and one term of
60 months for conspiring to murder an informant, with the instruction that the
sentences run concurrently.
Arrate-Rodriguez moved for a reduction of his sentence under Amendment
782. The government acknowledged that the amendment applied to Arrate-
Rodriguez and reduced his base offense level to 38, which, when increased by four
levels for his leadership role, resulted in an adjusted offense level of 42 and an
amended sentencing range of 360 months to life imprisonment. But the
government argued that the statutory sentencing factors counseled against reducing
Arrate-Rodriguez’s sentence. See 18 U.S.C. § 3553(a). The district court appointed
counsel for Arrate-Rodriguez and stated that it “may schedule an evidentiary
hearing.” Appointed counsel argued for a sentence at the low end of Arrate-
Rodriguez’s amended sentencing range.
We review for an abuse of discretion the denial of a motion to reduce a
sentence. United States v. Jules, 595 F.3d 1239, 1241 (11th Cir. 2010). A district
court may reduce a term of imprisonment when the defendant’s guideline range is
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c). After the district
court recalculates the sentence under the amended guidelines, it must decide, in the
light of the statutory sentencing factors, id. § 3553(a), “whether, in its discretion, it
will elect to impose the newly calculated sentence under the amended guidelines or
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retain the original sentence.” United States v. Bravo, 203 F.3d 778, 780–81 (11th
Cir. 2000).
The district court understood that Arrate-Rodriguez was eligible for a
sentence reduction. Although the district court used the word “ineligible” in the
final sentence of the written order, the remainder of the order makes clear that the
district court proceeded to the second step of the analysis and elected to retain
Arrate-Rodriguez’s original sentence. The order states that the district court
“DENIED” the motion to reduce “[u]pon consideration of the [statutory
sentencing] factors, and specifically ‘the nature and circumstances of the offense
and the history and characteristics of the defendant,’ § 3553(a)(1).”
The district court did not abuse its discretion when it denied Arrate-
Rodriguez’s motion. The government and Arrate-Rodriguez agreed that, based on
the amended drug table, he had an offense level of 38, U.S.S.G. § 2D1.1(c)(2),
which, with a four-level increase for his aggravating role, id. § 3B1.1(a), resulted
in an amended sentencing range between 360 months and life imprisonment, id.
Ch. 5, Pt. A. The district court reasonably decided to retain Arrate-Rodriguez’s
sentence of life imprisonment “[d]ue to the extraordinary quantity of drugs in this
case, as well as [Arrate-Rodriguez’s] conspiracy to murder a confidential
informant.” See 18 U.S.C. § 3553(a). Arrate-Rodriguez argues that the jury
acquitted him of charges for attempting to murder the informant and attempting to
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cause the informant bodily harm, but the district court relied on Arrate-Rodriguez’s
conviction for conspiring to commit those offenses. Arrate-Rodriguez also argues
for a reduction based on his rehabilitation, but the district court was not obligated
to consider Arrate-Rodriguez’s post-sentencing conduct. See U.S.S.G. § 1B1.10
cmt. n.1(B)(iii); United States v. Smith, 568 F.3d 923, 927 (11th Cir. 2009).
The district court also did not abuse its discretion when it declined to
conduct an evidentiary hearing. No hearing is necessary when no “factor important
to the sentencing determination is reasonably in dispute,” U.S.S.G. § 6A1.3, and
the government conceded that Amendment 782 applied to Arrate-Rodriguez. See
United States v. Phillips, 597 F.3d 1190, 1198 n.18 (11th Cir. 2010) (“the district
court in a § 3582(c)(2) matter is not required to have a sentencing hearing at all”).
Arrate-Rodriguez argues that he was denied due process, but the district court gave
him the opportunity to address the arguments of the government with the
assistance of appointed counsel. See id.
We AFFIRM the denial of Arrate-Rodriguez’s motion to reduce.
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