Submitted January 12, 2015
Appeal from United States District Court for the Western District of Arkansas - Fort Smith.
For United States of America, Plaintiff - Appellee: Clay Fowlkes, Assistant U.S. Attorney, Candace L. Taylor, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Fort Smith, AR.
For Miguel Soto, Defendant - Appellant: Joel Oliver Huggins, Huggins & Huggins, Springdale, AR.
Miguel Soto, Defendant - Appellant, Pro se, Texarkana, TX.
Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
RILEY, Chief Judge.
Miguel Soto pled guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. § § 841(a)(1) and 846. The district court sentenced Soto to 87 months imprisonment. Soto appeals his sentence, arguing the district court failed to (1) provide notice of an upward departure from the United States Sentencing Guidelines (U.S.S.G. or Guidelines) in violation of Federal Rule of Criminal Procedure 32(h), and (2) allow his attorney " a meaningful opportunity" to comment on Soto's role in the conspiracy in violation of Federal Rule of Criminal Procedure 32(i)(1)(C). After filing his brief in our court, Soto filed in the district court an unopposed motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which the district court granted. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm Soto's sentence.
Soto pled guilty, pursuant to an agreement with the government, to conspiring to distribute methamphetamine. Before sentencing, a probation officer prepared a presentence investigation report (PSR) calculating a two-level reduction to Soto's Guidelines base offense level, based on U.S.S.G. § 3B1.2(b), for being a minor participant in the conspiracy, which would require a commensurate four-level reduction under U.S.S.G. § 2D1.1(a)(5)(B)(iii). Based on these and several other reductions, the PSR ultimately computed an offense level of 27. Considering Soto's criminal history level I, the PSR reached an advisory Guidelines range of 70 to 87 months imprisonment. In Soto's plea agreement, the government agreed " not to object to a finding by the probation office or a ruling by the court which awards the defendant an appropriate level decrease in the base offense level for [his] role in the offense."
At the same time, Soto acknowledged in his plea agreement that the district court " may sentence [Soto] to any sentence within the statutory range." Soto also " acknowledge[d] that discussions have taken place concerning the possible guideline range which might be applicable to this case" and " agree[d] that any discussions merely attempt to guess at what appears to be the correct guideline range and do not bind the district court."
Although the government did not object to the minor participant reduction, the district court rejected it, explaining, " The Court does not believe that Mr. Soto was a minor participant and is not entitled to a mitigating role, but I am going to give Mr. Soto's counsel an opportunity to argue this point, if he wishes to make argument." After describing Soto's role in the conspiracy, the district court stated, " [T]he ...