United States v. Robert Aguilar

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2018
• Docket: 16-50319
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50319

Plaintiff-Appellee, D.C. No. 3:13-cr-01128-BEN-7

v.

ROBERT AGUILAR, AKA Gangster, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted February 15, 2018 Pasadena, California

Before: McKEOWN and WARDLAW, Circuit Judges, and DONATO,** District Judge.

Defendant Robert Aguilar appeals the denial of his 18 U.S.C. § 3582(c)(2)

motion for a reduced sentence. Aguilar pleaded guilty to conspiring to distribute

methamphetamine in a multi-defendant case, and he was sentenced in August 2014

to a 108-month term of imprisonment. The Sentencing Commission subsequently

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. passed Amendment 782 to the Sentencing Guidelines, which reduced by two

points the base offense level that applies to the same quantity of

methamphetamine. Amendment 788 made Amendment 782 retroactive for all

previously-sentenced defendants. On the basis of these Sentencing Guidelines

amendments, Aguilar moved for a reduction of his sentence from the

previously-imposed 108 months to 87 months, the low end of the amended

Guidelines range of 87-108 months. The district court denied the motion. We

have jurisdiction to review the denial under 28 U.S.C. § 1291, and we affirm.

Aguilar argues that the denial should be reversed because the district court

relied on a mistaken belief that Aguilar was personally involved in a robbery

against co-defendant Laura Cruz. But we conclude there was no reversible error

under either abuse of discretion or plain error review. See United States v.

Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009) (abuse of discretion); United States v.

Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011) (plain error). To the extent that the

district court may have relied on an erroneous fact—that Aguilar was the

perpetrator of the robbery—Aguilar’s counsel failed to object, which might have

clarified the situation.

We also reject defendant’s argument that the district court failed to conduct

the hearing on his motion in a reasonable fashion. “A district court has broad

discretion in how to adjudicate § 3582(c)(2) proceedings.” United States v.

2 Mercado-Moreno, 869 F.3d 942, 955 (9th Cir. 2017). “By its terms, § 3582(c)(2)

does not authorize a sentencing or resentencing proceeding,” with all of its

attendant rights. Dillon v. United States, 560 U.S. 817, 825 (2010). Aguilar

challenges the district court’s decision to hold one hearing on three co-defendants’

sentence reduction motions, but this is of no moment because the district court

clearly made an individualized determination as to Aguilar.

That the district court referred to information from other co-defendants’

trials without giving Aguilar express notice that it would do so is also not

unreasonable. The court referred to at least one of those trials at defendant’s

original sentencing hearing without counsel’s objection. And these were

co-defendants from this very case, with no suggestion that any of the trials were

not public. The onus was not on the district court to provide express notice to the

defendant that the information from those trials might be considered relevant.

Nor did the district court make a new factual finding in denying the sentence

reduction motion that was inconsistent with those made at the original sentencing

hearing. The court noted that “[t]he underlying offense involved a large drug

distribution conspiracy involving a great deal more than 500 grams of

methamphetamine of relevant conduct . . . .” This was not a new factual finding

about the quantity of drugs that should be attributed to the defendant, but rather a

proper exercise of the court’s discretion in considering “the nature and

3 circumstances of the offense” and the “nature and seriousness of the danger to any

person or the community that may be posed by a reduction in the defendant’s term

of imprisonment,” as the court was directed to do under 18 U.S.C. § 3582(c)(2), 18

U.S.C. § 3553(a), and U.S.S.G. § 1B1.10 (Commentary, Application Note

1(B)(ii)).

AFFIRMED.