United States v. Herrera

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 1, 2025
• Docket: 24-6236
• Status: Unpublished

Opinion

Appellate Case: 24-6236 Document: 22-1 Date Filed: 04/01/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 1, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 24-6236 v. (D.C. No. 5:22-CR-00233-SLP-1) (W.D. Okla.) ANTONIO ORTIZ HERRERA,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before FEDERICO, BALDOCK, and MURPHY, Circuit Judges. _________________________________

Defendant, Antonio Oritz Herrera, appeals pro se the district court’s denial of his

motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 821 to

the Sentencing Guidelines. Defendant’s motion requested a reduction of his 264–month

sentence of imprisonment for conspiracy to possess with intent to distribute

methamphetamine and cocaine, in violation of 21 U.S.C. § 846. Defendant argued he

qualified for a two-point offense level reduction as a zero-point offender pursuant to

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-6236 Document: 22-1 Date Filed: 04/01/2025 Page: 2

U.S.S.G. § 4C1.1(a) (2023). But to qualify for a reduction under that provision, Defendant

must satisfy ten eligibility criteria. See U.S.S.G. § 4C1.1(a). The district court dismissed

Defendant’s motion for lack of jurisdiction after determining that Defendant did not satisfy

all ten criteria. Specifically, the court held Defendant failed to satisfy the tenth criterion

because Defendant received an offense level adjustment under U.S.S.G. § 3B1.1 for his

role as a leader or organizer in the conspiracy. Defendant’s appeal raises a question of

statutory interpretation relating to the district court’s jurisdiction, so we review it de novo.

United States v. C.D., 848 F.3d 1286, 1289 (10th Cir. 2017). Exercising jurisdiction under

18 U.S.C. § 3742, we affirm.

At the time the district court dismissed Defendant’s motion, the tenth criterion for a

§ 4C1.1(a) offense level adjustment required that Defendant “did not receive an adjustment

under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise,

as defined in 21 U.S.C. § 848.” U.S.S.G. § 4C1.1(a)(10). Defendant argued, then as now,

that § 4C1.1(a)(10) only disqualifies Defendant if he both received an aggravating role

adjustment and engaged in a continuing criminal enterprise. Consequently, Defendant

argued he is eligible for a sentence reduction because he was not engaged in a continuing

criminal enterprise. The district court rejected Defendant’s argument, and so do we.

Receiving an adjustment under § 3B1.1 independently disqualifies Defendant from

receiving the benefit of a § 4C1.1(a) adjustment, regardless of whether Defendant also

engaged in a continuing criminal enterprise. Section 4C1.1(a) plainly requires that

Defendant “satisfy ‘all’ of the criteria listed in § 4C1.1(a)(1)–(10), including that he did

not receive a U.S.S.G. § 3B1.1 adjustment and that he did not engage in a continuing

2 Appellate Case: 24-6236 Document: 22-1 Date Filed: 04/01/2025 Page: 3

criminal enterprise.” United States v. Morales, 122 F.4th 590, 594 (5th Cir. 2024) (quoting

United States v. Rivera-Paredes, No. 24-40082, 2024 WL 3051671, at *1 (5th Cir. June 19,

2024)); see also United States v. Cervantes, 109 F.4th 944, 947 (7th Cir. 2024) (explaining

Section 4C1.1(a)(10) “is phrased ‘in terms of what the defendant must show was not true

of him,’ rather than being phrased ‘in terms of what the government would have to prove

was true.’”) (quoting United States v. Draheim, 958 F.3d 651, 657 (7th Cir. 2020)).

Accordingly, Defendant is ineligible for a § 4C1.1 adjustment because Defendant failed to

satisfy all of the provision’s eligibility requirements.

Moreover, even if there was any argument to be had that § 4C1.1(a)(10) required a

showing that Defendant both engaged in a continuing criminal enterprise and received an

aggravating role enhancement, it is not to be had any longer. The Sentencing Commission

has since amended § 4C1.1(a)(10) to clarify that receiving an adjustment under § 3B1.1

alone disqualifies a defendant from receiving an offense level reduction under § 4C1.1(a).

See U.S.S.G. § 4C1.1 (Historical Notes, 2024 Amendments) (explaining the Commission

adopted “technical changes” to “clarify the Commission's intention that a defendant is

ineligible for the adjustment if the defendant meets either of the disqualifying conditions

in the provision”). The amended guideline now lists eleven eligibility criteria rather than

ten, and it provides that a defendant only qualifies for a reduction if “(10) the defendant

did not receive an adjustment under § 3B1.1 (Aggravating Role); and (11) the defendant

was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.”

U.S.S.G. § 4C1.1(a)(10)–(11) (2024). Thus, the Commission’s clarification confirms that

the district court correctly interpreted § 4C1.1(a)(10).

3 Appellate Case: 24-6236 Document: 22-1 Date Filed: 04/01/2025 Page: 4

In conclusion, the meaning of § 4C1.1(a)(10) is clear––receiving an aggravating

role enhancement is enough to bar eligibility for an offense level reduction pursuant to

§ 4C1.1(a). It bars Defendant’s eligibility here. We AFFIRM the district court’s dismissal.

Defendant’s motion to proceed in forma pauperis is GRANTED.

Entered for the Court

Bobby R. Baldock Circuit Judge