United States v. Fausto Aguero Alvarado

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 1 of 16

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12172

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FAUSTO AGUERO ALVARADO,

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:11-cr-20026-KMM-5

____________________

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 2 of 16

2 Opinion of the Court 22-12172

Before LAGOA, ANDERSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Fausto Aguero Alvarado, a federal prisoner at

FCI Bennettsville, appeals the district court’s denial of his motion

for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on

Amendment 782 to the sentencing guidelines and his motion for

compassionate release pursuant to § 3582(c)(1)(A). The Govern-

ment has filed a motion for summary affirmance. We find no error

in the district court’s rulings, and we conclude that summary affir-

mance is warranted. Thus, we GRANT the Government’s motion

and AFFIRM the district court’s denial of both motions.

BACKGROUND

In July 2013, Defendant was convicted by a jury of conspir-

ing to distribute cocaine knowing that it would be imported into

the United States, in violation of 21 U.S.C. §§ 959(a), 963, and

960(b)(1)(B). In its verdict, the jury expressly found that Defendant

conspired to distribute cocaine “weighing five kilograms or more.”

Five kilograms is the amount of cocaine necessary to impose the

maximum penalty provided for in 21 U.S.C. § 960(b), including a

minimum term of ten years and a maximum term of life imprison-

ment. See 21 U.S.C. § 960(b)(1)(B).

According to the undisputed facts in the PSR, Defendant’s

conviction arose from an investigation conducted by the Drug En-

forcement Agency, the United States Department of Homeland

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 3 of 16

22-12172 Opinion of the Court 3

Security (“DHS”), and Colombian law enforcement in 2009 con-

cerning the sale of weapons to a terrorist organization in Colombia

in exchange for cocaine. During the investigation, Defendant in-

formed a Confidential Informant (“CI”) that he had “M-60 machine

guns, AK-47s, Red Eye surface-to-air missiles” and other weapons

manufactured in the United States that were available to be sold in

Honduras and Nicaragua. Defendant also told the CI that he had a

connection with a Nicaraguan national named Franklin McField-

Bent who ran a drug trafficking organization in Colombia that

transported drugs throughout Central America and into Mexico.

The authorities subsequently learned that Defendant had intro-

duced McField-Bent to a woman named Lina Grandet who pur-

portedly had between 1,000 and 1,500 kilograms of cocaine in Co-

lombia available to ship to Honduras. McField-Bent arranged to

send $20,000 to Grandet to initiate a purchase of the cocaine, but

the purchase was not completed.

Later in the investigation, the CI met with and advised De-

fendant that he was trying to acquire weapons for Autodefensas

Unidas de Colombia, a Colombian organization that DHS has iden-

tified as an armed and violent foreign terrorist group. After the CI

made a down payment of $3,000 to one of Defendant’s associates

for weapons to be provided in the future, Defendant introduced

the CI to McField-Bent. Thereafter, Defendant served as a middle-

man or broker for several deals between the CI and McField-Bent

involving the exchange of weapons manufactured in the United

States for hundreds of kilograms of cocaine located in Colombia.

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 4 of 16

4 Opinion of the Court 22-12172

Evidence recovered by Colombian police indicates that one of the

deals involved 442 kilograms of cocaine and another, separate deal

involved 400 kilograms of cocaine. These quantities are in addition

to the 1,000 to 1,500 kilograms of cocaine involved in the deal be-

tween McField-Bent and Grandet referenced above. Based on

these quantities, the PSR concluded that Defendant was accounta-

ble for “well over 150 kilograms of cocaine.”

The PSR assigned Defendant the highest base offense level

of 38 pursuant to § 2D1.1(a)(5) of the sentencing guidelines, which

at the time applied to an offense involving 150 kilograms or more

of cocaine. The PSR added a 2-level enhancement for obstruction

of justice, resulting in a total offense level of 40. Defendant’s crim-

inal history category was I, yielding a recommended guidelines

range of 292 to 365 months in prison, with a ten-year minimum

term of imprisonment and a maximum term of life pursuant to 21

U.S.C. § 960(b)(1)(B)(ii).

Defendant stated at his sentencing hearing that he did not

have any objections to the PSR’s description of his offense conduct

or to its calculations. 1 Consistent with the recommendations in the

PSR, the district court sentenced Defendant to 360 months in

prison, to be followed by five years of supervised release. This

1 Defendant initially asserted two objections to the PSR: (1) that the PSR

incorrectly stated that Defendant received $3,000, money Defendant claimed

was given to his co-defendant McField-Bent, and (2) that the PSR improperly

applied the 2-level obstruction of justice enhancement. Defense counsel rep-

resented at the sentencing hearing that those objections had been resolved.

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 5 of 16

22-12172 Opinion of the Court 5

Court affirmed Defendant’s conviction and sentence on direct ap-

peal. See United States v. Alvarado, 808 F.3d 474, 496 (11th Cir.

2015). In its opinion, the Court specifically referenced deals involv-

ing Defendant that included 1,000 kilograms and 400 kilograms of

cocaine, respectively. See id. at 480–81.

In March 2019, Defendant filed a pro se motion for a sen-

tence reduction under 18 U.S.C. § 3582(c)(2) and Amendment 782

to the sentencing guidelines. In support of his motion, Defendant

argued that his base offense level of 38, the level that applied to 150

kilograms of cocaine at the time of his original sentencing, should

be reduced by two levels to 36 under Amendment 782, a retroac-

tively applicable amendment to the sentencing guidelines that low-

ered the base offense level for offenses involving at least 150 kilo-

grams but less than 450 kilograms of cocaine. Defendant claimed

the guidelines adjustment would result in a recommended guide-

lines range of 235 to 293 months in prison for his offense.

In July 2020, Defendant filed a motion for compassionate re-

lease pursuant to 18 U.S.C. § 3582(c)(1)(A). As amended by the

First Step Act of 2018 (the “First Step Act”), that statute authorizes

a district court to reduce a defendant’s sentence if the reduction is

warranted by “extraordinary and compelling reasons” and if it is

consistent with the sentencing factors set forth in 18 U.S.C.

§ 3553(a) and the applicable guidelines policy statements. See 18

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 6 of 16

6 Opinion of the Court 22-12172

U.S.C. § 3582(c)(1)(A)(i). 2 In support of his motion for compassion-

ate release, Defendant argued that he was vulnerable to contract-

ing COVID-19 because of the “poor sanitary conditions at his facil-

ity” and because of the many cases of COVID-19 among BOP staff

and inmates. Additionally, Defendant argued that he had a “flaw-

less” inmate disciplinary record and that he had been involved in

continuous programming while in prison and at one point had

acted heroically to “sav[e] the life of an employee of the United

States Government.” Finally, Defendant emphasized his rehabili-

tation efforts and he claimed that he no longer posed any danger to

the public.

The district court denied Defendant’s motions for a sentence

reduction and for compassionate release in a single order. Regard-

ing the Amendment 782 motion, the court cited undisputed facts

in the PSR indicating that Defendant was accountable for at least

1,842 kilograms of cocaine, which quantity-finding triggered the

same base offense level of 38 even when one applied Amendment

782. The court thus concluded that Defendant did not show he

was entitled to a lower guidelines range under Amendment 782, as

required to invoke § 3582(c)(2). As to compassionate release under

§ 3582(c)(1)(A), the district court found that Defendant did not sat-

isfy his burden of demonstrating extraordinary and compelling

2 Section 3582(c)(1)(A) also authorizes a sentence reduction under certain cir-

cumstances if “the defendant is at least 70 years of age” but it is undisputed

that Defendant does not qualify for an age-based sentence reduction. See 18

U.S.C. § 3582(c)(1)(A)(ii).

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 7 of 16

22-12172 Opinion of the Court 7

reasons for his release, as required under that provision. Alterna-

tively, the court stated that the § 3553(a) factors weighed against

compassionate release.

Defendant appeals, arguing that the district court erred and

abused its discretion when it denied his motion for a sentence re-

duction under § 3582(c)(2). As to his motion for compassionate

release, Defendant essentially concedes that he does not qualify for

relief under § 3582(c)(1)(A) based on any of the grounds this Court

held in United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021) can

support such relief—that is, an inmate’s age, qualifying medical

condition, or family circumstances. Instead, Defendant argues that

the Court should abandon its precedent in Bryant and expand its

definition of what qualifies as an extraordinary and compelling rea-

son justifying compassionate release under § 3582(c)(1)(A).

DISCUSSION

I. Standards of Review

We review de novo a district court’s legal conclusions about

the scope of its authority to modify a sentence under 18 U.S.C. §

3582(c)(2). United States v. Caraballo-Martinez, 866 F.3d 1233,

1238 (11th Cir. 2017). Assuming the district court has such author-

ity, we review the court’s decision to grant or deny a sentence re-

duction under § 3582(c)(2) only for abuse of discretion. Id. Simi-

larly, we review de novo whether a defendant is eligible for com-

passionate release pursuant to § 3582(c)(1)(A) and, if eligibility is

established, we review the denial of a motion for compassionate

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 8 of 16

8 Opinion of the Court 22-12172

release for abuse of discretion. United States v. Giron, 15 F.4th

1343, 1345 (11th Cir. 2021). “A district court abuses its discretion if

it applies an incorrect legal standard, follows improper procedures

in making the determination, or makes findings of fact that are

clearly erroneous.” United States v. Harris, 989 F.3d 908, 911–12

(11th Cir. 2021) (quoting Cordoba v. DIRECTV, LLC, 942 F.3d

1259, 1267 (11th Cir. 2019) (quotation marks omitted)).

Summary disposition of an appeal is appropriate when “the

position of one of the parties is clearly right as a matter of law so

that there can be no substantial question as to the outcome of the

case, or where, as is more frequently the case, the appeal is frivo-

lous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th

Cir. 1969). 3 This Court has used summary disposition to resolve

appeals that do not warrant extended discussion.

II. Defendant’s Motion for a Sentence Reduction Under 18

U.S.C. § 3582(c)(2)

Defendant argues that the district court erred when it denied

his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)

based on Amendment 782 to the sentencing guidelines, which was

implemented after Defendant was sentenced. Amendment 782 re-

duced by two levels the base offense level applicable to certain drug

offenses under § 2D1.1(c) of the guidelines. See Hughes v. United

3 Decisions of the United States Court of Appeals for the Fifth Circuit issued

before October 1, 1981, are binding on this Court. Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 9 of 16

22-12172 Opinion of the Court 9

States, 138 S. Ct. 1765, 1774 (2018). Of relevance here, Amendment

782 lowered the base offense level for offenses involving at least

150 kilograms but less than 450 kilograms of cocaine to 36, and it

reserved the highest base offense level of 38 for offenses involving

450 kilograms or more of cocaine. See U.S.S.G. App. C, Amend.

782 (2014). As noted, the PSR assigned Defendant a base offense

level of 38, which at the time of Defendant’s sentencing applied to

offenses involving at least 150 kilograms of cocaine. See U.S.S.G. §

2D1.1(c) (2013). Defendant contends that, per his § 3582(c)(2) mo-

tion, the district court should have retroactively applied Amend-

ment 782, lowered his base offense level from 38 to 36, recalculated

his guidelines range, and reduced his sentence accordingly.

A district court’s authority to modify a prison sentence “is

narrowly limited by statute.” United States v. Phillips, 597 F.3d

1190, 1194–95 (11th Cir. 2010). Section 3582(c)(2) provides for such

authority under certain circumstances when a defendant was “sen-

tenced to a term of imprisonment based on a [guidelines] range

that has subsequently been lowered.” 18 U.S.C. § 3582(c)(2). See

also United States v. Hamilton, 715 F.3d 328, 336–37 (11th Cir.

2013) (explaining the governing principles applicable to a §

3582(c)(2) motion for a sentence reduction). To authorize a sen-

tence reduction, an amendment to the guidelines must be listed in

§ 1B1.10 of the guidelines as retroactively applicable, and the

amendment must in fact result in a lower sentencing range than

the range upon which the defendant’s sentence was based. See

Hamilton, 715 F.3d at 337 (noting that a sentence reduction is not

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 10 of 16

10 Opinion of the Court 22-12172

authorized by § 3582(c)(2) “if the amendment does not have the

effect of lowering the defendant’s applicable guidelines range” (ci-

tation and quotation marks omitted)). Assuming both of those re-

quirements are met, the district court still must exercise its discre-

tion to determine whether a sentence reduction is warranted based

on the sentencing factors of 18 U.S.C. § 3553(a), as well as any ap-

plicable guidelines policy statements. See id.

Applying the principles set out above, a two-step analysis

governs a defendant’s motion for a sentence reduction under

§ 3582(c)(2). See United States v. Bravo, 203 F.3d 778, 780 (11th

Cir. 2000). First, the district court must determine whether a ret-

roactively applicable amendment to the sentencing guidelines re-

sults in a lower guidelines range for the defendant, thus making

him eligible for a reduced sentence. See Hamilton, 715 F.3d at 337.

In making that determination, the district court must leave intact

“all of its previous factual decisions”—including any drug quantity

findings. See id. (citation and quotation marks omitted). See also

United States v. Jackson, 58 F.4th 1331, 1336 (11th Cir. 2023) (reaf-

firming the rule in this circuit that a district court, when consider-

ing a First Step Act motion, is bound by prior fact findings—includ-

ing judge-made drug quantity findings that trigger penalties later

modified by the Act). As the § 3582(c)(2) movant, the defendant

has the burden at this stage of showing, based on those findings,

that he would have received a lower guidelines range if the amend-

ment “had been in effect at the time of his original sentencing.”

Hamilton, 715 F.3d at 341. Next, and assuming the defendant has

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 11 of 16

22-12172 Opinion of the Court 11

shown he is eligible for a sentence reduction under § 3582(c)(2), the

court must decide at the second stage of the analysis “whether, in

its discretion, it will elect to impose the newly calculated sentence

under the amended guidelines or retain the original sentence” after

considering the pertinent § 3553(a) sentencing factors and any ap-

plicable guidelines policy statements. See Bravo, 203 F.3d at 781.

Here, the district court correctly found at the first stage of

the analysis that Defendant is not eligible for a sentence reduction

under § 3582(c)(2). As the court acknowledged, Amendment 782

is retroactively applicable per § 1B1.10 of the guidelines. See

U.S.S.G. § 1B1.10(d). Nevertheless, Defendant failed to demon-

strate that his offense involved less than 450 kilograms of cocaine,

such that his base offense level would be lower under Amendment

782 than the level that was applied at his sentencing. On the con-

trary, the unobjected to—and thus undisputed—facts in the PSR

show that Defendant’s offense involved a minimum of 1,842 kilo-

grams of cocaine. See United States v. Davis, 587 F.3d 1300, 1303–

04 (11th Cir. 2009) (holding that the defendant was “deemed to

have admitted, for sentencing purposes, the facts in the PS[R] he

did not object to clearly and specifically at sentencing” and that the

district court was “permitted to make factual findings based on the

undisputed statements in the PS[R]” when ruling on the defend-

ant’s § 3582(c)(2) motion for a sentence reduction). As such, De-

fendant’s base offense level under Amendment 782 would be 38,

the same base offense level applied at his sentencing. See U.S.S.G.

App. C, Amend. 782 (2014). Accordingly, the district court was not

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 12 of 16

12 Opinion of the Court 22-12172

authorized by § 3582(c)(2) to reduce Defendant’s sentence and it

clearly did not err when it denied Defendant’s motion for a sen-

tence reduction under that provision. See Hamilton, 715 F.3d at

337.

The only substantive argument Defendant makes in support

of his appeal as to the § 3582(c)(2) issue is that he was sentenced

based on “uncharged quantities” of drugs, in contravention to Al-

leyne v. United States, 570 U.S. 99 (2013). Alleyne has no relevance

to Defendant’s case. In Alleyne, the Supreme Court held that

“[f]acts that increase the mandatory minimum sentence are . . . el-

ements and must be submitted to the jury and found beyond a rea-

sonable doubt.” Id. at 108. Here, there is no dispute that Defend-

ant’s mandatory minimum was based on the jury’s finding that he

conspired to distribute cocaine “weighing five kilograms or more.”

See 21 U.S.C. § 960(b)(1)(B). Further, the Court’s holding in Al-

leyne derives from a criminal defendant’s Sixth Amendment right

to a jury trial. See Alleyne, 570 U.S. at 104. The Supreme Court

has made it clear that the sentence modification procedures of §

3582(c)(2) “are not constitutionally compelled” and thus “do not

implicate the Sixth Amendment right to have essential facts found

by a jury beyond a reasonable doubt.” Dillon v. United States, 560

U.S. 817, 828 (2010).

In short, the district court did not err when it denied Defend-

ant’s motion for a reduced sentence under § 3582(c)(2), and the

Government’s argument to that effect clearly is correct as a matter

of law. See Groendyke Transp., Inc., 406 F.2d at 1162. The

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 13 of 16

22-12172 Opinion of the Court 13

Government’s motion for summary affirmance is thus GRANTED

as to this issue, and the district court’s order denying the motion is

AFFIRMED.

III. Compassionate Release

Defendant also argues that the district court erred by deny-

ing his motion for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A). As amended by the First Step Act, § 3582(c)(1)(A)

authorizes the district court to grant a defendant’s motion for com-

passionate release if: (1) “extraordinary and compelling reasons

warrant” such relief and (2) the defendant’s release is consistent

with the sentencing factors of § 3553(a) and the “applicable policy

statements issued by the Sentencing Commission.” 18 U.S.C. §

3582(c)(1)(A)(i). The relevant policy statement, found in U.S.S.G.

§ 1B1.13, echoes the statutory requirements, stating that a district

court may grant a defendant’s motion for compassionate release

“if, after considering the factors set forth in . . . § 3553(a),” the court

determines that: (1) “[e]xtraordinary and compelling reasons war-

rant” the defendant’s release and (2) “[t]he defendant is not a dan-

ger to the safety of any other person or to the community, as pro-

vided in 18 U.S.C. § 3142(g).” See U.S.S.G. § 1B1.13. See also

United States v. Bryant, 996 F.3d 1243, 1248 (11th Cir. 2021)

(“1B1.13 is an applicable policy statement for all [§ 3582(c)(1)(A)]

motions[.]”); United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir.

2021) (listing three conditions that are necessary for a sentence re-

duction under § 3582(c)(1)(A): support in the § 3553(a) factors,

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 14 of 16

14 Opinion of the Court 22-12172

extraordinary and compelling reasons, and adherence to U.S.S.G.

§ 1B1.13’s policy statement).

The applicable guidelines policy statement, cited above,

identifies three extraordinary and compelling reasons that can au-

thorize a court to grant a motion for compassionate release under

§ 3582(c)(1)(A). See U.S.S.G. § 1B1.13, cmt. n.1(A)-(C). First, a de-

fendant’s medical condition can constitute an extraordinary and

compelling reason for release if the defendant can show that he is

suffering either from a “terminal illness” or a “serious physical or

medical condition” that “substantially diminishes [his] ability . . . to

provide self-care” in prison and “from which he . . . is not expected

to recover.” U.S.S.G. § 1B1.13, cmt. n.1(A). Second, release is per-

mitted under certain circumstances if the defendant is at least 65

years old. See U.S.S.G. § 1B1.13, cmt. n.1(B). And finally, a defend-

ant’s family circumstances can create an extraordinary and compel-

ling reason for release based on the “death or incapacitation of the

caregiver of the defendant’s minor child” or the “incapacitation of

the defendant’s spouse or registered partner when the defendant

would be the only available caregiver for the spouse or registered

partner.” U.S.S.G. § 1B1.13, cmt. n.1(C). The policy statement also

contains a catch-all provision that allows the Bureau of Prisons

(“BOP”) to determine that there are other extraordinary and com-

pelling reasons for a particular defendant’s release, but this Court

has held that only the BOP—as opposed to the court—has the au-

thority to determine that release is warranted under that provision.

See Bryant, 996 F.3d at 1263 (“We cannot replace the phrase ‘[a]s

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 15 of 16

22-12172 Opinion of the Court 15

determined by the Director of the [BOP]’ with ‘as determined by a

district court.’”).

Defendant does not demonstrate—or even argue—that he

is eligible for compassionate release based on any of the reasons set

out above. Instead, he argues for release under § 3582(c)(1)(A) as a

result of: (1) his susceptibility to COVID-19 based on the poor san-

itary conditions of prison, (2) his “flawless” discipline record; (3) his

heroic action saving the life of an employee of the United States

Government, and (4) his rehabilitation. This Court held in Bryant

that relief can only be granted under § 3582(c)(1)(A) based on one

of the reasons expressly set out in the applicable guidelines policy

statement—that is, a qualifying medical condition, advanced age,

or family circumstances requiring the defendant to act as a care-

taker to a minor child, spouse, or registered partner. See id. at 1265

(“Because [the defendant’s] motion does not fall within any of the

reasons that 1B1.13 identifies as extraordinary and compelling, the

district court correctly denied his motion for a reduction of his sen-

tence.” (quotation marks omitted)). The factors cited by Defend-

ant do not qualify. As such, summary affirmance is warranted be-

cause Defendant failed to establish extraordinary and compelling

reasons to justify his compassionate release.

Defendant essentially concedes that his compassionate re-

lease motion is not viable under Bryant, but he urges the Court to

reconsider and vacate the panel opinion in Bryant based on prece-

dent from other circuits and district courts around the country. De-

fendant’s argument is precluded by this Court’s prior panel

USCA11 Case: 22-12172 Document: 19-1 Date Filed: 03/07/2023 Page: 16 of 16

16 Opinion of the Court 22-12172

precedent rule. See In re Lambrix, 776 F.3d 789, 794 (11th Cir.

2015). Under that rule, “a prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined

to the point of abrogation by the Supreme Court” or by this Court

sitting en banc. Id. Because Bryant has not been overturned by the

Supreme Court or this Court sitting en banc, this Court is bound

by it. Defendant’s argument that we should disregard Bryant is

thus clearly unavailing.

CONCLUSION

As the movant, Defendant had the burden of establishing his

eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) and

compassionate release under 18 U.S.C. § 3582(c)(1)(A). See Ham-

ilton, 715 F.3d at 337. The district court correctly held that Defend-

ant failed to meet that burden here. The Government’s motion for

summary affirmance is thus GRANTED, and the court’s order

denying both Defendant’s motion for a sentence reduction under

§ 3582(c)(2) and his motion for compassionate release under

§ 3582(c)(1)(A) is AFFIRMED.