United States v. Wilfrido Florez-Montano

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 1 of 8

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-13906 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILFRIDO FLOREZ-MONTANO,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:02-cr-00228-JSM-JSS-9 ____________________

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 2 of 8 2 Opinion of the Court 21-13906

Before JORDAN, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: Wilfrido Florez-Montano, a Columbian national and federal prisoner proceeding pro se, appeals the denial of his motion to re- duce his sentences under 18 U.S.C. § 3582(c)(2) and Amendment 782 to the U.S. Sentencing Guidelines. The government, in turn, moves for summary affirmance and to stay the briefing schedule. For the reasons stated below, we grant the government’s motion for summary affirmance and deny its motion to stay the briefing schedule as moot. I. As brief background, in 2002, a jury found Florez-Montano guilty of: (1) one count of possession with intent to distribute five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of the United States; and (2) one count of conspiracy to possess with intent to distribute five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States. At trial, the evidence showed that a United States Coast Guard vessel had searched a fishing vessel and found two guns and 268 packages of cocaine totaling 4,665 kilograms of cocaine. Florez-Montano acted as a crew member on that fishing vessel. Florez-Montano was sentenced by the district court to 292 months’ imprisonment, based on a sentencing guidelines calcula- tion of a total offense level of 40 and a criminal history category I.

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 3 of 8 21-13906 Opinion of the Court 3

He appealed, but we affirmed his sentence. See United States v. Estrada-Tello, 99 F. App’x 879 (11th Cir. 2004). 1 In 2014, after filing a series of motions not relevant to this appeal, Florez-Montano filed a pro se motion to modify or reduce his sentence under 18 U.S.C. § 3582(c)(2) and Amendment 782 of the Sentencing Guidelines. The probation office issued a memo- randum addressing his eligibility for a reduction and found that he was ineligible for a reduction because the Drug Quantity Table re- mained the same at level 38 for 4,665 kilograms of cocaine. The district court also appointed counsel for the purpose of seeking to reduce his sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, but the Federal Public Defender’s office announced that it would not be filing a motion for a sentence reduction based on the same reasoning. The district court denied this motion. In 2021, Florez-Montano filed this motion and once again sought to reduce his sentence under § 3582(c)(2) and Amendment 782, arguing that the amendment applied and would reduce his to- tal sentence by 58 months. He also argued that he had exemplary conduct in prison and had completed post-sentencing rehabilita- tion. The district court once again denied his motion, finding that his drug quantity exceeded the eligibility threshold such that Amendment 782 would not lower his base offense level. This ap- peal ensued.

1 Angel Neri Estrada-Tello was a codefendant in Florez-Montano’s case. USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 4 of 8 4 Opinion of the Court 21-13906

II. On appeal, Florez-Montano argues that the district court did not consider his current motion and intervening facts or law when it denied his motion. Specifically, he asserts that the court did not consider his post-sentencing rehabilitation efforts. He also argues for the first time on appeal that he was not subject to a final order of removal, other inmates had been released which created sen- tencing disparities, and the district court abused its discretion by not appointing him counsel. In response, the government moves for summary affir- mance, arguing that the district court could not have reduced Florez-Montano’s sentence because Amendment 782 does not lover his guideline range and that he had previously been ap- pointed counsel. Summary disposition is appropriate either where time is of the essence, such as “situations where important public policy is- sues are involved or those where rights delayed are rights denied,” or where “the position of one of the parties is clearly right as a mat- ter of law so that there can be no substantial question as to the out- come of the case, or where, as is more frequently the case, the ap- peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 2

Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), 2 In

we adopted as binding precedent all Fifth Circuit decisions issued before Oc- tober 1, 1981.

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 5 of 8 21-13906 Opinion of the Court 5

We review de novo a district court’s legal conclusions about the Sentencing Guidelines and the scope of its authority under 18 U.S.C. § 3582(c)(2). United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009). We liberally construe pro se pleadings. Tannen- baum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But we review arguments brought for the first time on appeal only for plain error. United States v. Anderson, 1 F.4th 1244, 1268 (11th Cir. 2021); Fed. R. Crim. P. 52; see also United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (holding that a § 3582(c)(2) motion is criminal). “Plain error occurs when (1) there was an error, (2) the error was plain or obvious, (3) the error affected the defendant’s substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Ander- son, 1 F.4th at 1268–69. To satisfy the plain error rule, an asserted error must be clear from the plain meaning of a statute or consti- tutional provision or from a holding of the Supreme Court or this Court directly resolving it. United States v. Morales, 987 F.3d 966, 976 (11th Cir.), cert. denied, 142 S. Ct. 500 (2021). Ordinarily, a district court may not modify a defendant’s term of imprisonment once it has been imposed. § 3582(c). But, under § 3582(c)(2), a district court may reduce the prison sentence 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.” Accord U.S.S.G. § 1B1.10(a)(1). The grounds on which a district court may reduce a defendant’s sentence under § 3582(c)(2), however, are narrow. United States

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 6 of 8 6 Opinion of the Court 21-13906

v. Berry, 701 F.3d 374, 376 (11th Cir. 2012). For a defendant to be eligible for such a reduction, the Sentencing Commission must have amended the Sentencing Guidelines, the amendment must have lowered the defendant’s sentencing range, and the relevant amendment must be listed in U.S.S.G. § 1B1.10(d). See United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013); § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1) & cmt. n.1(A). The applicable guideline range is a defendant’s guideline range before any departures or var- iances. U.S.S.G. § 1B.10 cmt. n.1(A). When determining the extent to which a reduction in a defendant’s term of imprisonment is war- ranted under § 3582(c)(2), a court “shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) . . . had been in effect at the time the defendant was sentenced,” but “shall leave all other guideline application de- cisions unaffected.” Id. § 1B1.10(b)(1). Thus, “[w]here a retroac- tively applicable guideline amendment reduces a defendant’s base offense level, but does not alter the sentencing range upon which his . . . sentence was based, § 3582(c)(2) does not authorize a reduc- tion in sentence.” Hamilton, 715 F.3d at 337 (alteration in original) (quoting United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 2008)). Amendment 782 revised the drug quantity tables in U.S.S.G. § 2D1.1 and raised the threshold amount of cocaine required for a base offense level of 38 from 150 kilograms to 450 kilograms, re- sulting in a two-level reduction to the base offense level applicable to many drug offenses. See U.S.S.G. app. C, amend. 782 (2014).

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 7 of 8 21-13906 Opinion of the Court 7

Because Amendment 782 is one of the listed amendments that ap- plies retroactively, it may serve as the basis for a § 3582(c)(2) mo- tion to reduce sentence. U.S.S.G. §§ 1B1.10(a)(1), (d). Finally, a defendant does not have a mandatory constitu- tional right to counsel in a § 3582(c)(2) motion. United States v. Webb, 565 F.3d 789, 794–95 (11th Cir. 2009). Here, each of Florez-Montano’s contentions is meritless. First, the district court properly considered his present § 3582(c)(2) motion for a sentence reduction. The court referenced his previ- ous motion for a sentence reduction, but did so to acknowledge his previous effort to reduce his total sentence using the same amend- ment. Second, Florez-Montano was not entitled to a sentence re- duction in 2021, or even when he sought one in 2014, 3 under Amendment 782. As relevant here, U.S.S.G. § 2D1.1(c)(1) estab- lished a base offense level of 38 for 450 kilograms or more of co- caine. Amendment 782 changed the applicable drug threshold to 450 kilograms of cocaine, see id. app. C, Amend. 782; id. § 2D1.1(c)(1), but his offense conduct involved 4,665 kilograms of cocaine. That establishes a base offense level of 38, the same as his

3 Amendment 782 became effective immediately for defendants sentenced on or after November 1, 2014. United States v. Maiello, 805 F.3d 992, 995 (11th Cir. 2015). But for defendants who, like Florez-Montano, were sentenced prior to the effective date, the Sentencing Commission promulgated section 1B1.10(e), which prohibited any order granting relief under Amendment 782 from taking effect prior to November 1, 2015. Id.

USCA11 Case: 21-13906 Date Filed: 06/06/2022 Page: 8 of 8 8 Opinion of the Court 21-13906

previous base offense level. § 2D1.1(c)(1). Using the amended guidelines, a total offense level of 40 and a criminal history category I establishes a guideline sentencing range of 292 to 365 months’ im- prisonment, the same as his previous range. See U.S.S.G., Sentenc- ing Table. Thus, as his guideline range did not change, the district court did not have the authority to reduce his total sentence. Third, for those arguments that Florez-Montano raises for the first time on appeal, even construing pro se filings liberally, his assertions regarding not being subject to a final order of deporta- tion and sentencing disparities with other inmates do not show an error, let alone an error that is plain. Anderson, 1 F.4th at 1268–69; Morales, 987 F.3d 966, 976. As for his appointment of counsel ar- guments, there is no constitutional required appointed counsel for a § 3582(c)(2) proceeding, Webb, 565 F.3d at 794–95, and the Public Defender’s Office already appeared and declined to file a brief be- cause of the drug quantity found at sentencing meaning that his base offense level remained the same. Accordingly, because the government’s position is correct as a matter of law, we GRANT the government’s motion for sum- mary affirmance and DENY as moot its motion to stay the briefing schedule. AFFIRMED.