19-3073 United States v. Ortiz
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty.
PRESENT: REENA RAGGI, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________
United States of America,
Appellee,
v. No. 19-3073
Nathanael R. Ortiz, AKA Bob, AKA Bebe,
Defendant-Appellant. _____________________________________ FOR APPELLANT: MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY.
FOR APPELLEE: MICHAEL D. MAIMIN (Karl Metzner, on the brief), Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY.
Appeal from the United States District Court for the Southern District of
New York (Denny Chin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Defendant-Appellant Nathanael Ortiz appeals from an order of the district
court (Chin, J.), denying his motion for a reduced sentence under the First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194. In 2009, Ortiz pleaded guilty to
conspiring to distribute and possess with intent to distribute between 150 and 500
grams of crack cocaine, which, at that time, carried a mandatory minimum
sentence of 10 years. See 21 U.S.C. §§ 841(b)(1)(A), 846. At sentencing, the district
court determined that Ortiz’s Guidelines range was 168 to 210 months’
imprisonment and sentenced Ortiz to the bottom end of that range: 168 months.
About a year and a half later, the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, went into effect, which prospectively increased the drug amounts 2 needed to trigger certain mandatory minimum sentences for crack cocaine
trafficking offenses. Consistent with that policy change, the U.S. Sentencing
Commission made several retroactive amendments to the Guidelines over the
following years, lowering the proposed sentences for crack cocaine offenses.
While Ortiz was not eligible for a resentencing under the forward-looking Fair
Sentencing Act, he filed two motions under 18 U.S.C. § 3582(c)(2), seeking to
reduce his sentence in light of the various amendments to the Guidelines. The
district court denied both requests.
In 2018, Congress passed the First Step Act, which made the Fair Sentencing
Act’s reductions to mandatory minimums retroactively applicable to defendants
like Ortiz. The following year, Ortiz moved yet again for a reduced sentence. The
district court denied the motion. Ortiz now appeals this latest denial, arguing that
the district court’s decision was procedurally and substantively unreasonable. We
assume the parties’ familiarity with the facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to affirm.
Simply because a defendant is eligible for a reduced sentence under the First
Step Act does not mean that a district court is obligated to grant him relief. See
United States v. Holloway, 956 F.3d 660, 666 (2d Cir. 2020) (“The First Step Act is
3 clear that it does not ‘require a court to reduce any sentence.’” (quoting First Step
Act, § 404(c), 132 Stat. at 5222)). Rather, “[s]uch a reduction ‘is discretionary . . .
and a district judge may exercise that discretion to deny relief where
appropriate.’” United States v. Moore, 975 F.3d 84, 87 (2d Cir. 2020) (quoting United
States v. Johnson, 961 F.3d 181, 191 (2d Cir. 2020)). We thus review a denial on
discretionary grounds only for abuse of that discretion. Id. at 88. In so doing, we
accept the district court’s factual findings as true absent clear error. Id. at 89.
When we review a district court’s exercise of discretion in the sentencing
context, we scrutinize the procedural and substantive reasonableness of the court’s
decision. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). If we
find significant procedural error, we typically remand without examining
substance. Id. at 190. But not always. If “the record indicates clearly that ‘the
district court would have imposed the same sentence’ in any event,” then we may
deem the error harmless and affirm. United States v. Jass, 569 F.3d 47, 68 (2d
Cir. 2009) (quoting Cavera, 550 F.3d at 197).
The First Step Act is a “limited procedural vehicle.” Moore, 975 F.3d at 92.
As a result, in assessing motions brought under that act, district courts need not
perform “de novo Guidelines calculations,” id., nor must they consider “new
4 Guidelines provisions,” id. at 90. Instead, the First Step Act requires only that
district courts “take into account Guidelines range changes that result directly from
the retroactive application of Sections 2 and 3” of the Fair Sentencing Act. Id. at 91
(emphasis added). Of course, that does not mean that a district court cannot
consider additional factors. But it is left to the district court’s discretion “what
[other] factors are relevant as it determines whether and to what extent to reduce
a sentence.” Id. at 92 n.36.
Alleging procedural error, Ortiz argues that the district court miscalculated
his Guidelines range as “121 to 151 months” or “151 to 188 months.” Ortiz Br.
at 37. He claims his correct Guidelines range was 87 to 108 months and urges us
to remand because the district court failed to identify that anchoring figure.
For two reasons, we decline to do so. First, we disagree with Ortiz that the
district court thought his Guidelines range was 121 to 151 or 151 to 188 months.
Those ranges were simply hypothetical calculations that the district court used to
explain how certain facts – such as Ortiz’s later conviction for possessing a firearm,
see 18 U.S.C. § 924(c), and the drug weight attributable to him – impacted its
discretionary decision to deny Ortiz relief. Indeed, in discussing those two ranges,
the district court was careful to use conditional language so as to denote its
5 analysis as hypothetical: “If the later conviction had been entered prior to Ortiz’s
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19-3073 United States v. Ortiz
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty.
PRESENT: REENA RAGGI, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________
United States of America,
Appellee,
v. No. 19-3073
Nathanael R. Ortiz, AKA Bob, AKA Bebe,
Defendant-Appellant. _____________________________________ FOR APPELLANT: MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY.
FOR APPELLEE: MICHAEL D. MAIMIN (Karl Metzner, on the brief), Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney for the Southern District of New York, New York, NY.
Appeal from the United States District Court for the Southern District of
New York (Denny Chin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Defendant-Appellant Nathanael Ortiz appeals from an order of the district
court (Chin, J.), denying his motion for a reduced sentence under the First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194. In 2009, Ortiz pleaded guilty to
conspiring to distribute and possess with intent to distribute between 150 and 500
grams of crack cocaine, which, at that time, carried a mandatory minimum
sentence of 10 years. See 21 U.S.C. §§ 841(b)(1)(A), 846. At sentencing, the district
court determined that Ortiz’s Guidelines range was 168 to 210 months’
imprisonment and sentenced Ortiz to the bottom end of that range: 168 months.
About a year and a half later, the Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, went into effect, which prospectively increased the drug amounts 2 needed to trigger certain mandatory minimum sentences for crack cocaine
trafficking offenses. Consistent with that policy change, the U.S. Sentencing
Commission made several retroactive amendments to the Guidelines over the
following years, lowering the proposed sentences for crack cocaine offenses.
While Ortiz was not eligible for a resentencing under the forward-looking Fair
Sentencing Act, he filed two motions under 18 U.S.C. § 3582(c)(2), seeking to
reduce his sentence in light of the various amendments to the Guidelines. The
district court denied both requests.
In 2018, Congress passed the First Step Act, which made the Fair Sentencing
Act’s reductions to mandatory minimums retroactively applicable to defendants
like Ortiz. The following year, Ortiz moved yet again for a reduced sentence. The
district court denied the motion. Ortiz now appeals this latest denial, arguing that
the district court’s decision was procedurally and substantively unreasonable. We
assume the parties’ familiarity with the facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to affirm.
Simply because a defendant is eligible for a reduced sentence under the First
Step Act does not mean that a district court is obligated to grant him relief. See
United States v. Holloway, 956 F.3d 660, 666 (2d Cir. 2020) (“The First Step Act is
3 clear that it does not ‘require a court to reduce any sentence.’” (quoting First Step
Act, § 404(c), 132 Stat. at 5222)). Rather, “[s]uch a reduction ‘is discretionary . . .
and a district judge may exercise that discretion to deny relief where
appropriate.’” United States v. Moore, 975 F.3d 84, 87 (2d Cir. 2020) (quoting United
States v. Johnson, 961 F.3d 181, 191 (2d Cir. 2020)). We thus review a denial on
discretionary grounds only for abuse of that discretion. Id. at 88. In so doing, we
accept the district court’s factual findings as true absent clear error. Id. at 89.
When we review a district court’s exercise of discretion in the sentencing
context, we scrutinize the procedural and substantive reasonableness of the court’s
decision. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). If we
find significant procedural error, we typically remand without examining
substance. Id. at 190. But not always. If “the record indicates clearly that ‘the
district court would have imposed the same sentence’ in any event,” then we may
deem the error harmless and affirm. United States v. Jass, 569 F.3d 47, 68 (2d
Cir. 2009) (quoting Cavera, 550 F.3d at 197).
The First Step Act is a “limited procedural vehicle.” Moore, 975 F.3d at 92.
As a result, in assessing motions brought under that act, district courts need not
perform “de novo Guidelines calculations,” id., nor must they consider “new
4 Guidelines provisions,” id. at 90. Instead, the First Step Act requires only that
district courts “take into account Guidelines range changes that result directly from
the retroactive application of Sections 2 and 3” of the Fair Sentencing Act. Id. at 91
(emphasis added). Of course, that does not mean that a district court cannot
consider additional factors. But it is left to the district court’s discretion “what
[other] factors are relevant as it determines whether and to what extent to reduce
a sentence.” Id. at 92 n.36.
Alleging procedural error, Ortiz argues that the district court miscalculated
his Guidelines range as “121 to 151 months” or “151 to 188 months.” Ortiz Br.
at 37. He claims his correct Guidelines range was 87 to 108 months and urges us
to remand because the district court failed to identify that anchoring figure.
For two reasons, we decline to do so. First, we disagree with Ortiz that the
district court thought his Guidelines range was 121 to 151 or 151 to 188 months.
Those ranges were simply hypothetical calculations that the district court used to
explain how certain facts – such as Ortiz’s later conviction for possessing a firearm,
see 18 U.S.C. § 924(c), and the drug weight attributable to him – impacted its
discretionary decision to deny Ortiz relief. Indeed, in discussing those two ranges,
the district court was careful to use conditional language so as to denote its
5 analysis as hypothetical: “If the later conviction had been entered prior to Ortiz’s
sentencing in [this] case, he would have had an additional three criminal history
points and his criminal history category would have been III.” App’x at 42
(emphasis added). Even if such hypothetical discussion can sow confusion about
what Guidelines range the district court thought to be appropriate, that is not this
case. Here, the hypothetical was appropriately part of the court’s discretionary
analysis, see Moore, 975 F.3d at 92 n.36, and we identify no error that requires us to
vacate the district court’s decision.1
Second, Ortiz is incorrect that his Guidelines range was 87 to 108 months for
purposes of his First Step Act motion. As we recently held in Moore, in considering
such a motion, a district court must only “take into account Guidelines range
changes that result directly from the retroactive application of Sections 2 and 3” of
the Fair Sentencing Act. Id. at 91 (emphasis added). In Ortiz’s case, while
Sections 2 and 3 of the Fair Sentencing Act reduced his mandatory minimum
1Ortiz also argues that the district court should have applied the rule of lenity when it calculated his drug weight. But the rule of lenity applies to ambiguous statutory text, not uncertain facts. See United States v. Simpson, 319 F.3d 81, 87 (2d Cir. 2002) (“[I]n order for the rule of lenity to apply to . . . a Guideline . . . the provision of law at issue must be ambiguous.”). Ortiz’s drug weight is factual, so lenity does not apply. And given that the presentence investigation report linked Ortiz to sales and negotiations collectively involving more than 360 grams of crack cocaine – to which Ortiz did not object – we see no clear error with the district court’s finding that Ortiz was responsible for sales of at least 280 grams of crack cocaine.
6 sentence from ten years to five, they did not otherwise affect his original
Guidelines range, which was 168 to 210 months. And while Ortiz insists that the
retroactive amendments to the Guidelines themselves would now put his
sentencing range at 87 to 108 months, Moore already decided that such changes do
not flow directly from Sections 2 and 3 and are therefore not part of a First Step
Act Guidelines calculation.2 Id. at 90 (determining that a district court is not
required to “recalculate a defendant’s Guidelines range to account for . . new
Guidelines provisions”). So, for purposes of this motion, Ortiz’s Guidelines range
was still 168 to 210 months, and the only change from his original sentencing was
that his mandatory minimum was now only 5 years.
Of course, the district court exercised its discretion to deny Ortiz’s motion
without making explicit findings on the record as to Ortiz’s applicable Guidelines
range. We need not decide if that was procedural error because, even assuming
that it was, the error was harmless. In this case, any possible miscalculation of the
2Indeed, had Congress intended for such changes to be a necessary component of a First Step Act resentencing, it could have required courts to consider the effects of Sections 2, 3, and 8 of the Fair Sentencing Act, the last of which directed the U.S. Sentencing Commission to promulgate new guidelines or policy statements in light of the statute’s changes. See Fair Sentencing Act, § 8, 124 Stat. at 2374.
7 applicable Guidelines – whether 151–188, 121–151, or 87–108 – would have
benefited Ortiz, not harmed him.
More importantly, the record is clear that “the district court would have
imposed the same sentence in any event,” Jass, 569 F.3d at 68, making any error
doubly harmless. As we noted above, Ortiz made two prior motions for a
reduction in his sentence in light of retroactive Guidelines amendments. Unlike
the present motion, those requests were made under § 3582(c)(2), 3 which required
the district court to recalculate Ortiz’s Guidelines range, taking into account the
intervening amendments. See 18 U.S.C. § 3582(c)(2) (requiring courts to consider
“applicable policy statements issued by the Sentencing Commission”); U.S.S.G.
§ 1B1.10(b)(1) (directing that “the court shall determine the amended guideline
range that would have been applicable to the defendant”). But even then, when
Ortiz’s applicable Guideline range fell between 120 and 135 months, the district
court refused to grant Ortiz a reduced sentence. It is unsurprising, then, that this
latest motion, with an applicable Guidelines range more than 40 months higher
than Ortiz’s two unsuccessful motions, would also fail. We are thus confident that
3 First Step Act motions fall under § 3582(c)(1)(B). See Holloway, 956 F.3d at 667.
8 any error was harmless because the “record indicates clearly” that the district
court would have rejected Ortiz’s motion “in any event.” Jass, 569 F.3d at 68.
In addition to arguing that the district court’s Guidelines calculation
constituted procedural error, Ortiz also contends that the district court’s refusal to
reduce its previously imposed sentence of 168 months was substantively
unreasonable. We disagree. Not only was Ortiz’s sentence within the Guidelines
range applicable to his motion, but the district court detailed multiple factors –
Ortiz’s later gun conviction, the actual amount of narcotics for which he was
responsible, and his poor disciplinary record while incarcerated – that cut against
any discretionary reduction. By any metric, then, the denial was well “within the
range of permissible decisions.” United States v. Rigas, 583 F.3d 108, 122 (2d
Cir. 2009) (internal quotation marks omitted).
We have considered Ortiz’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the order of the district court is
AFFIRMED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court