United States v. Walberto Cortes

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 14, 2025
• Docket: 24-12354
• Status: Unpublished

Opinion

USCA11 Case: 24-12354 Document: 29-1 Date Filed: 03/14/2025 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-12354 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WALBERTO CUERO CORTES, Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:17-cr-00097-WFJ-TGW-2 ____________________ USCA11 Case: 24-12354 Document: 29-1 Date Filed: 03/14/2025 Page: 2 of 5

2 Opinion of the Court 24-12354

Before LUCK, LAGOA, and KIDD, Circuit Judges. PER CURIAM: Walberto Cortes appeals from the district court’s denial of his motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 821 to the Sentencing Guide- lines, which provides that defendants who did not receive any criminal history points, and whose instant offenses did not involve specified aggravating factors, are eligible for a decrease of two lev- els from their calculated offense levels. Cortes argues that the dis- trict court abused its discretion by failing to consider an applicable 18 U.S.C. § 3553(a) factor—the pertinent policy statement issued by the Sentencing Commission. Cortes asserts that the district court disregarded the Commission’s intent in providing retrospec- tive application of Amendment 821 by emphasizing, when denying his motion, the weight of the cocaine and the fact that Cortes re- ceived a low-end guidelines sentence after a safety-valve reduction and a reduction for acceptance of responsibility. We review a district court’s denial of a motion for a sentence reduction, pursuant to § 3582(c)(2), for an abuse of discretion. United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009). An argu- ment raised for the first time in an appellant’s reply brief is waived. United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004). Section 3582(c)(2) permits a district court to reduce a sen- tence for a defendant “who has been sentenced to a term of impris- onment based on a sentencing range that has been subsequently lowered by the Sentencing Commission,” so long as “such a USCA11 Case: 24-12354 Document: 29-1 Date Filed: 03/14/2025 Page: 3 of 5

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reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The Com- mission has indicated that sentence reductions are permissible when “the guideline range applicable to that defendant has subse- quently been lowered as a result of an amendment listed in U.S.S.G. § 1B1.10(d).” U.S.S.G. § 1B1.10(a). As noted by Cortes, the policy statement for § 1B1.10 pro- vides that: [t]he listing of an amendment in subsection (d) re- flects policy determinations by the Commission that a reduced guideline range is sufficient to achieve the purposes of sentencing and that, in the sound discre- tion of the court, a reduction in the term of imprison- ment may be appropriate for previously sentenced, qualified defendants. § 1B1.10, p.s. The policy statement also states, however, that the “authorization of such a discretionary reduction . . . does not entitle a defendant to a reduced term of imprisonment as a matter of right.” Id. In November 2023, Amendment 821 to the Sentencing Guidelines went into effect. See U.S. Sentencing Commission, Adopted Amendments (Effective November 1, 2023), Amendment 821. As relevant here, Part B of Amendment 821, which the Commis- sion stated should be applied retroactively, added a new section, § 4C1.1 (2023), which provides for a decrease in a defendant’s of- fense level if the defendant satisfies ten criteria, including that the USCA11 Case: 24-12354 Document: 29-1 Date Filed: 03/14/2025 Page: 4 of 5

4 Opinion of the Court 24-12354

defendant did not receive any criminal history points from Chapter 4, Part A. U.S.S.G. amends. 821, 825 (2023); see also § 1B1.10. If the district court determines that a defendant is eligible for a sentence reduction under § 3582(c)(2), it next must consider the relevant § 3553(a) factors to determine whether, in its discretion, such a reduction is warranted. 18 U.S.C. § 3582(c)(2); Dillon v. United States, 560 U.S. 817, 827 (2010). The district court must con- sider several sentencing factors, including the nature of the offense; the defendant’s character and history; the need for the sentence im- posed to reflect the seriousness of the offense, punish the defend- ant, and deter crime; and any pertinent policy statements. 18 U.S.C. § 3553(a). A district court abuses its discretion when it (1) fails to con- sider relevant factors that were due significant weight, (2) gives an improper or irrelevant factor significant weight, or (3) commits a clear error of judgment by balancing the proper factors unreasona- bly. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc); see also United States v. Curtin, 78 F.4th 1299, 1311 (11th Cir. 2023). We have recognized that district courts enjoy broad discre- tion in weighing the § 3553(a) factors. United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008). The district court may also consider the defendant’s post-sentencing conduct in evaluating whether a reduction in the defendant’s sentence is warranted. United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). The district court is not required, however, to articulate the applicability of each factor, as long as the USCA11 Case: 24-12354 Document: 29-1 Date Filed: 03/14/2025 Page: 5 of 5

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record as a whole demonstrates that the pertinent factors were con- sidered by the court. Id. at 1256–57. Here, we conclude that the district court did not abuse its discretion by denying Cortes’s § 3582(c)(2) motion. The district court acknowledged that Cortes qualified for relief under Amend- ment 821, but it refused to reduce his sentence due to the nature and seriousness of his offense, which it noted involved a “massive amount of cocaine.” Moreover, the district court did consider the pertinent policy statement issued by the Sentencing Commission but chose to exercise its discretion to deny a sentence reduction. See § 1B1.10, p.s. (stating that in the “sound discretion of the court, a reduction in the term of imprisonment may be appropriate,” but the “authorization of such a discretionary reduction does not oth- erwise affect the lawfulness of a previously imposed sentence . . . and does not entitle a defendant to a reduced term of imprison- ment as a matter of right”); United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) (“The grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary.”). Overall, Cortes has not shown that the district court failed to con- sider relevant factors that were due significant weight, gave an im- proper or irrelevant factor significant weight, or committed a clear error of judgment by balancing the factors unreasonably. See Irey, 612 F.3d at 1189. Accordingly, we affirm. AFFIRMED.