USA v. Alexander Barasena-Brito

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 7, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14545
Non-Argument Calendar
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D. C. Docket No. 08-20590-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXANDER BARASENA-BRITO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 7, 2010)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Alexander Barasena-Brito appeals the district court’s denial of his pro se

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“Motion for Downward Departure to Early Disposition ‘Fast Track’ under 5K3.1.”
The district court denied Barasena-Brito’s motion after determining that it lacked
jurisdiction to modify his sentence. Barasena-Brito pled guilty to one count of
illegal reentry after removal and was sentenced on November 19, 2008 to 36
months’ imprisonment followed by three years’ supervised release. The district
court granted a downward departure pursuant to U.S.S.G. § 5K1.1 for substantial
assistance.
Construing his pro se brief liberally, Barasena-Brito argues on appeal that
his ineligibility for a U.S.S.G. § 5K3.1 reduction for a “Fast-Track” plea created an
unwarranted sentencing disparity between otherwise identical defendants in other
jurisdictions because an early disposition program had not been authorized in the
district in which he pled guilty. Barasena-Brito asserts that the district court was
permitted to vary downward because the guidelines are advisory.
We review de novo a district court’s jurisdiction to re-sentence a defendant.
United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002). A district court
may not modify a term of imprisonment once it has been imposed, except where
expressly permitted by Federal Rule of Criminal Procedure 35 or by 18 U.S.C. §
3582, and a district court lacks “inherent power” to re-sentence a defendant. See
id.; 18 U.S.C. § 3582(c). Under Rule 35(a), a district court may “correct a sentence
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that resulted from arithmetical, technical, or other clear error” within 14 days after
sentencing. Fed. R. Crim. P. 35(a). Under Rule 35(b), the government may move
for a reduction of a defendant’s sentence based on substantial assistance provided
by the defendant. Fed. R. Crim. P. 35(b). The only additional authorization for a
district court to modify a sentence is upon (1) a motion by the Bureau of Prisons
based on extraordinary circumstances or in cases involving an elderly prisoner or
(2) a retroactive amendment to the guidelines that lowers the sentencing range of
the defendant. 18 U.S.C. § 3582(c); see United States v. Armstrong, 347 F.3d 905,
907 (11th Cir. 2003) (stating that “[a]ny retroactive reduction in sentence
subsequent to a motion filed under § 3582(c)(2) must be ‘consistent with
applicable policy statements issued by the Sentencing Commission’” (citation
omitted)).
Barasena-Brito’s claim that the district court erred by denying his motion to
reduce his sentence is without merit. Barasena-Brito’s motion was made more
than fourteen days after his sentence was imposed, and therefore, Rule 35(a) did
not authorize the district court to modify his sentence. Further, neither the Bureau
of Prisons nor the government has made a post-sentencing motion on Barasena-
Brito’s behalf on this basis. Although Barasena-Brito contends that U.S.S.G. §
5K3.1 is applicable, a retroactive guideline amendment is required to invoke a
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guideline provision as a basis for a sentence reduction under 18 U.S.C. §
3582(c)(2), and no retroactive guideline amendment has been issued for U.S.S.G. §
5K3.1. See U.S.S.G. § 5K3.1. There is no statutory provision or Federal Rule of
Criminal Procedure that would have authorized the district court to reduce
Barasena-Brito’s sentence. Therefore, the district court correctly determined that it
lacked jurisdiction to reduce Barasena-Brito’s sentence. Diaz-Clark, 292 F.3d at
1315. Barasena-Brito’s argument that his sentence could have been reduced
because the guidelines are advisory incorrectly assumes that the district court had
jurisdiction to modify his sentence. Accordingly, we affirm.
AFFIRMED.
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