United States v. Jose Ortiz-Vega

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-1482

_________

UNITED STATES OF AMERICA

v.

JOSE ORTIZ-VEGA,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-04-cr-00015-001)

District Judge: Honorable Eduardo C. Robreno

_______

Submitted Under Third Circuit LAR 34.1(a)

December 12, 2013

Before: MCKEE, CHIEF JUDGE, FUENTES, and SLOVITER, Circuit Judges

(Filed: March 12, 2014)

Mark E. Coyne, Esq.

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Bernadette A. McKeon, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Sarah S. Gannett, Esq.

Christy Unger, Esq.

Federal Community Defender Office for the

Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

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OPINION

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Sloviter, Circuit Judge.

This case involves a novel question as to when a

reduction in sentence based on retroactive changes to the

sentencing guidelines for crack cocaine is applicable. Jose

Ortiz-Vega appeals his 108 month sentence for cocaine base

(“crack”) offenses. Ortiz-Vega argues that he is eligible for a

sentence modification under 18 U.S.C. § 3582(c)(2) in light

of retroactively applicable modifications to the federal

Sentencing Guidelines dealing with crack cocaine offenses.

For the reasons given below, we reverse the District Court’s

denial of Ortiz-Vega’s request for sentence modification, and

remand for further consideration in light of our decision.1

1

The District Court had subject matter jurisdiction pursuant

to 18 U.S.C. § 3231, and had jurisdiction to consider Ortiz-

Vega’s motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2). We have jurisdiction pursuant to 28 U.S.C. §

1291. We exercise plenary review of a district court’s

conclusions regarding the scope of its authority under 18

U.S.C. § 3582(c). United States v. Mateo, 560 F.3d 152, 154

(3d Cir. 2009).

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I.

Ortiz-Vega pled guilty to multiple counts of crack

cocaine possession and distribution, as well as possession of a

firearm in furtherance of a drug trafficking offense. The

District Court sentenced him on July 6, 2004 to 108 months

imprisonment on the drug charges, a mandatory 60 months, to

be served consecutively, on the firearm count, and 10 years of

supervised release, all sentences suggested by the government

in the plea agreement.

Various statutory provisions were applicable to Ortiz-

Vega’s sentence. The Sentencing Guidelines called for a

sentence of 97-121 months on the drug charges, and the gun

offense carried a mandatory consecutive sentence of 60

months. 18 U.S.C. § 24(c)(1)(A)(I). Additionally, the drug

charges carried, at the time, a mandatory minimum penalty of

120 months. 21 U.S.C. § 841(b)(1)(A)(iii) (2006) (since

amended several times, most recently in 2010). This ought to

have led to a sentencing range for Ortiz-Vega of 120-121

months. However, the mandatory minimum sentence was not

asked for by the government, and was not applied by the

District Court. The District Court sentenced Ortiz-Vega to

108 months on the drug charge, and the government did not

challenge this, seek resentencing, or appeal within the

relevant periods.

In 2010, the Fair Sentencing Act (“FSA”) was passed

by Congress, seeking to “restore fairness to Federal Cocaine

sentencing” by lowering the mandatory minimum penalties

for distributing crack cocaine. Fair Sentencing Act of 2010,

Pub. L. 111-220, § 2, 124 Stat. 2372 (2010). The FSA

reduced the disparity in quantities triggering mandatory

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minimum sentences between crack cocaine and powder

cocaine from 100:1 to approximately 18:1. Congress gave

the Federal Sentencing Commission authority to promulgate

new guidelines to conform the Sentencing Guidelines with

the FSA’s new penalty ratios. The new guideline, U.S.S.G.

App. C, amd. 750, was promulgated in 2010, and made

retroactive, effective November 1, 2011. See U.S.S.G. App.

C, amd. 759. Under the new, retroactive Guidelines, the

offense level for the drug offenses in Ortiz-Vegas’ case would

be 30. With the relevant upward and downward adjustments

already established, this would lead to a Guideline range of

78-97 months rather than 97-121 months for Ortiz-Vega. See

U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

In the sentence modifications proceedings before the

District Court, the government argued, and the District Court

accepted, that Ortiz-Vega was not eligible for a sentence

reduction because such a reduction was blocked by operation

of the 120 month mandatory minimum sentence that should

have been, but was not, applied to Ortiz-Vega. This decision

was at least arguably consistent with the controlling precedent

in this circuit at the time, United States v. Doe, 564 F.3d 305,

309 (3d Cir. 2009). Not long after the District Court denied

Ortiz-Vega’s request for a sentence modification, however,

this court, in United States v. Savani, 733 F.3d 56, 58 (3d Cir.

2013), held that Doe had been superseded by the 2010

amendments to the Sentencing Guidelines. Ortiz-Vega

appealed.

II.

This appeal presents the novel question of whether a

defendant, who would otherwise be eligible for a sentence

reduction based on a change in Guideline ranges, is rendered

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ineligible for the reduction by a relevant mandatory minimum

sentence, despite the fact that the mandatory minimum was

not actually applied in his or her case.

18 U.S.C. § 3582(c)(2) governs modification of

sentences in the case that a sentencing guideline has been

changed. It provides an exception to the normal rule, 18

U.S.C.§ 3582(c), that a court may not modify a term of

imprisonment once it has been imposed. The exception

provides:

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 pursuant to 28 U.S.C. 994(o), upon

motion of the defendant or the Director of the Bureau

of Prisons, or on its own motion, the court may

reduce the term of imprisonment, after considering

the factors set forth in section 3553(a) to the extent

they are applicable, if such a reduction is consistent

with applicable policy statements issued by the

Sentencing Commission.

18 U.S.C. § 3582(c)(2).

Following this rule would suggest that Ortiz-Vega

should be eligible for a sentence reduction, as he was

“sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing

Commission.” (App. 5, 10) However, a question arises here

as to whether such a reduction would be, in this case,

“consistent with the applicable policy statements issued by

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the Sentencing Commission.” The District Court held that it

would not be.

In relevant part, Application Note 1(A) to Section

1B1.10 of the Sentencing Commission’s policy statement

states that a sentence reduction under § 3582(c)(2) is “not

consistent with this policy statement if . . . (ii) an amendment

listed in subsection (c) is applicable to the defendant but the

amendment does not have the effect of lowering the

defendant’s applicable guideline range because of the

operation of another statutory provision (e.g., a statutory

mandatory minimum term of imprisonment).” These policy

statements are binding on the courts. See Dillon v. United

States, 560 U.S. 817, 821 (2010) (“Any reduction must be

consistent with applicable policy statements issued by the

Sentencing Commission.”).

The District Court, taking its lead from our decision in

Doe, held that this policy statement rendered Ortiz-Vega

ineligible for a sentence reduction because the “operation of .

. . a statutory mandatory minimum term of imprisonment”

applied to him. In such a case, the District Court held, the

“mandatory minimum sentence subsumes and becomes the

applicable guideline range for the Defendant.” (App. 17

(citing Doe, 564 F.3d at 312)) Because the District Court

held that the policy statement ruled out reducing Ortiz-Vega’s

sentence, it did not directly consider so-called “Step One” in

the § 3582(c)(2) analysis, addressing whether or not Ortiz-

Vega’s sentence was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.”

The District Court, in denying Ortiz-Vega’s motion for

sentence reduction, relied on our decision in Doe. However,

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in the time after the District Court’s decision, this court held

that Doe was superseded by statute. While, under Doe, the

court understood the Sentencing Commission policy

statement to require treating a mandatory minimum sentence

as the “applicable guideline range” whether or not the

mandatory minimum was actually applied to the particular

defendant, in Savani we held that this interpretation had been

foreclosed by revisions to the guideline commentary. Savani,

733 F.3d at 62. After the November 2011 revisions to the

Guidelines, the commentary to § 1B1.10 now defines

“applicable guideline range” as “the guideline range that

corresponds to the offense level and criminal history category

determined pursuant to § 1B1.1(a), which is determined

before consideration of any departure provisions in the

Guidelines Manual or any variance.” U.S.S.G § 1B1.10,

Comment (n.1(A)) (Nov. 2011). This suggests that

“applicable guideline range” in § 1B1.10 means the

sentencing range corresponding to the defendant’s offense

level and criminal history category, not in terms of a

mandatory minimum sentence if the mandatory minimum was

not actually applied. Savani, 733 F.3d at 62, 65.

After Savani, the District Court’s justification for

denying Ortiz-Vega’s request for sentencing modification is

no longer applicable. The government, however, asks us to

distinguish this case from Savani on the grounds that the

defendants in Savani were given sentences below the

otherwise applicable mandatory minimum sentence because

of substantial assistance departures, while this was not so in

Ortiz-Vega’s case. While not a complete non sequitur, this

argument is not, in the end, convincing. The plausible part of

the government’s argument is that substantial assistance is

one of the few explicit reasons for imposing a sentence below

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the statutory mandatory minimum authorized by 18 U.S.C. §

3553(e). Imposing a sentence below the mandatory minimum

is rarely, if ever, authorized on other grounds. But, the

commentary language itself does not provide the limitation

the government seeks, and we see no reason to read it back

into the rule itself. The reason for not imposing a mandatory

minimum sentence may be relevant when a district court

decides whether to exercise discretion in granting a

modification of sentence or not, but is not a part of the

comment language itself, and it would be inappropriate to add

this requirement on our own.

III.

The District Court decided that Ortiz-Vega was not

eligible for a sentence modification under § 3582(c)(2) on the

ground that such a modification would not be “consistent with

applicable policy statements issued by the Sentencing

Commission.” (App. 16) Because the District Court wrongly

held that Ortiz-Vega was not eligible for modification under

this “Step Two” analysis, it did not address Step One. We,

however, must consider Step One. This requires that the

defendant have been sentenced to a term of imprisonment,

“based on a sentencing range that has subsequently been

lowered by the Sentencing Commission.” 18. U.S.C. §

3582(c)(2).

The government here contends that, even though it was

not actually applied to Ortiz-Vega, he was nonetheless

“subject to” the mandatory minimum sentence, and therefore

his sentence was not “based on a sentencing range that has

subsequently been lowered.” Ortiz-Vega contends that, while

it is true that the mandatory minimum should have been

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applied, it was not, and he was therefore not “subject to” it,

and his sentence was therefore clearly “based on” a

sentencing range (the crack cocaine Guidelines) that were

subsequently changed. There is some plausibility to both

interpretations. There is a plausible sense of “subject to”

where Ortiz-Vega was “subject to” the mandatory minimum

sentence even though it was not actually applied, given that it

should have applied.

However, the more plausible interpretation would

require that the mandatory minimum actually be applied —

that the defendant be subjected to it — for the defendant to be

ineligible for modification under Step One. This

interpretation fits better with the statutory language itself,

since if 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.” And, in Ortiz-

Vega’s actual case, it is quite clear from the District Court’s

sentencing hearing that he was given a sentence “based on a

sentencing range that has subsequently been lowered.” For

this reason, it is clear that Ortiz-Vega meets the requirements

for Step One, allowing him to seek a sentence modification.

IV.

One additional basis for our decision that Ortiz-Vega

is eligible for a sentence modification must also be discussed.

While it is not completely clear why the mandatory minimum

was not applied to Ortiz-Vega, this omission is characterized

by the government and the District Court as a mistake or an

error. The government suggests that, in deciding whether to

grant a sentence modification to Ortiz-Vega, we should act as

if the mandatory minimum were actually applied, and

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therefore deny the modification. The District Court largely

agreed with this, holding that to grant a modification at this

point would be to “perpetuate [the] error” by “overlook[ing]

the statutory mandatory minimum twice.” (App. 21)

As Ortiz-Vega convincingly argues, however, this is

almost exactly backwards. As the District Court itself noted,

prior sentencing errors cannot be modified in a § 3582(c)(2)

proceeding. This was confirmed by the Supreme Court,

which has stated unequivocally that a court may not revisit or

re-decide guideline applications during a § 3582(c)(2)

proceeding, but rather must work only with the sentence

actually imposed. See Dillon, 560 U.S. at 831. The large

majority of cases that have addressed this issue have

considered errors that went against the defendant. But, there

is no reason why this principle should apply only when it

goes against defendants, and not when it benefits them, and

nothing in the relevant court decisions would support such an

interpretation. As odd as it may seem, “perpetuating an

error” is exactly what is required by Dillon in a case like this.

The District Court was therefore incorrect to use the past

error as a reason to deny a sentence modification.

V.

The FSA not only called for change in the crack

cocaine sentencing guidelines, it also lowered several

mandatory minimum sentences. If Ortiz-Vega had been

convicted of the same crimes after the passage of the FSA, he

would have faced a 60 month mandatory minimum, rather

than the 120 months that should have applied to him. See 21

U.S.C. § 841(b)(1)(A) & (B), as amended by Pub. L. 111-220

(2010). Ortiz-Vega argues that, if he is subject to a

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mandatory minimum, it ought to be to the post-FSA

mandatory minimum, a sentence that would be below his

applicable guideline sentence. Unlike his earlier arguments,

this argument is without merit. The FSA mandatory

minimum was not made retroactive, and this court, and every

other court of appeals to consider the issue, has held that the

FSA mandatory minimums do not apply to defendants who

committed their offenses and were sentenced prior to the

enactment of the FSA in August, 2010. See United States v.

Reevey, 631 F.3d 110, 115 (3d Cir. 2010).

However, the fact that the FSA significantly lowered

the mandatory minimum that someone like Ortiz-Vega would

be subject to if his crime had taken place today may still have

some relevance for this case. The final decision as to whether

to grant a sentence modification is a discretionary decision for

the district court, even if a defendant qualifies for a

modification under § 3582(c)(2). This discretionary element

is signaled by the language in § 3582(c)(2) that says “the

court may reduce” the sentence (emphasis added). The fact

that the FSA has cut in half the mandatory minimum that

someone like Ortiz-Vega would be sentenced to today surely

tells in favor of exercising discretion in his favor to reduce his

sentence. The government suggests that the District Court

had signaled that it would not exercise discretion in favor of

Ortiz-Vega, and implies that this gives us further grounds to

uphold the sentence. Because the District Court found that it

lacked authority to modify Ortiz-Vega’s sentence, the

question of the District Court’s exercise of discretion in this

case was not before us. We will therefore remand so that the

District Court can exercise its discretion.

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VI.

This case presents an interaction of complex statutes,

policy statements, and confused prior proceedings, making

for a difficult and perhaps unique pattern. However, for the

reasons given above, we find that Ortiz-Vega is eligible for a

sentence modification under 18 U.S.C. § 3582(c)(2), and

remand to the District Court for further proceedings

consistent with this decision.

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