United States v. Eustorgio Flores

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2019
• Docket: 18-10342
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10342

Plaintiff-Appellee, D.C. No. 1:08-cr-00124-AWI-1 v.

EUSTORGIO FLORES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Submitted December 4, 2019** San Francisco, California

Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit Judges.

Following a jury trial, Eustorgio Flores was convicted of four drug-

trafficking offenses related to his involvement in a conspiracy to distribute

methamphetamine and cocaine. He was sentenced to 324 months of imprisonment

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). on each count, to be served concurrently. Flores now appeals from the district

court’s order denying his motion for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

At Flores’s sentencing, the district court explained: “If I ignore the quantities

in the Hawaii transactions which could easily be attributable, we still have the 1.5

or more kilos of crystal meth” from other drug transactions, “which equates to a

level 38,” the maximum offense level provided under the Sentencing Guidelines,

U.S.S.G. § 2D1.1(c) (2010). Following the retirement of the sentencing judge, and

an amendment to the Sentencing Guidelines that reduced by two levels the base

offense levels associated with drug quantities, U.S.S.G. supp. app. C., amend. 782

(Nov. 1, 2014), Flores presented his motion for a sentence reduction to a different

district judge. In response to that motion, the court made a supplemental finding

that Flores was responsible for an additional 2.267 kilograms of methamphetamine

beyond the amount that formed the basis for his initial sentence. Because the total

drug quantity exceeded 4.5 kilograms, Flores’s base offense level remained 38

notwithstanding Amendment 782, and Flores’s guidelines range was unchanged.

The court therefore deemed Flores ineligible for a sentence reduction. See U.S.S.G.

§ 1B1.10(b)(2)(A).

1. Flores argues that the district court was not free to revisit the drug

2 quantity attributable to him because the sentencing judge made a “complete”

finding at sentencing. We review de novo whether the district court “may

supplement the original sentencing court’s drug quantity findings” when

adjudicating a motion for sentence reduction under section 3582(c)(2). United

States v. Mercado-Moreno, 869 F.3d 942, 953 (9th Cir. 2017).

In Mercado-Moreno, we held that a district court evaluating a motion for a

sentence reduction may make supplemental drug quantity findings when “the

sentencing court’s quantity finding is ambiguous or incomplete.” Id. at 954. And

we explained that supplemental findings would be appropriate if the sentencing

judge had “quantified only part of the amount for which [d]efendant was

responsible, without making a specific finding as to the rest, because that partial

amount supported the maximum base offense level at the time of sentencing.” Id.;

accord United States v. Rodriguez, 921 F.3d 1149, 1158 (9th Cir. 2019).

That is what happened here. As the district court correctly determined, the

sentencing judge did not make a complete finding regarding the total quantity of

drugs for which Flores was responsible. To the contrary, the sentencing judge

expressly acknowledged that other amounts could be attributable to Flores, but that

no finding was necessary because the amount attributable to Flores already

exceeded the threshold for the maximum base offense level under the Drug

Quantity Table in effect at the time. Under Mercado-Moreno, therefore, it was

3 appropriate for the district court to make supplemental findings in ruling on

Flores’s motion.

2. Flores argues that the district court should have held an evidentiary

hearing before making supplemental findings. “A district court has broad

discretion in how to adjudicate § 3582(c)(2) proceedings, including whether to

hold a hearing when making supplemental determinations of drug quantity.”

Mercado-Moreno, 869 F.3d at 955.

We are not persuaded that a hearing was necessary. The district court

“reviewed the trial transcript, the presentence report, the verdict, the third

superseding indictment, and the sentencing transcript.” The district court

considered Flores’s challenge to the credibility of one of the government’s

witnesses. It also explained why it disagreed with one of Flores’s objections to the

presentence report. Its supplemental findings were based on the evidence in the

record at sentencing. Its decision reflects a reasoned consideration and rejection of

Flores’s objections and arguments about the disputed evidence in the record. The

district court did not abuse its discretion when it determined that no hearing was

necessary. See Mercado-Moreno, 869 F.3d at 955 (“When the district court does

not consider any evidence outside of the record at sentencing, an evidentiary

hearing will not always be necessary.”).

3. Along similar lines, Flores argues that the Sentencing Guidelines

4 require a sentencing hearing to “resolve disputed sentencing factors.” U.S.S.G.

§ 6A1.3(b); see Fed. R. Crim P. 32(i)(4). But “a district court proceeding under

§ 3582(c)(2) does not impose a new sentence in the usual sense.” Dillon v. United

States, 560 U.S. 817, 827 (2010). Proceedings under section 3582(c)(2) do not

require a sentencing hearing because they involve “only a limited adjustment to an

otherwise final sentence and not a plenary resentencing proceeding.” Mercado-

Moreno, 869 F.3d at 956 (quoting Dillon, 560 U.S. at 826). Flores contends that

the denial of a hearing violated due process, but he does not show how the process

he received was inadequate. His drug quantity arguments were fully developed in

the record reviewed by the district court.

AFFIRMED.