United States Court of Appeals, District of Columbia Circuit
October 16, 2018
from the United States District Court for the District of
Columbia (No. 1:07-cr-00065-2)
D. Hernandez, appointed by the court, argued the cause and
filed the brief for appellant.
A. Heller, Attorney, U.S. Department of Justice, argued the
cause and filed the brief for appellee. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
Before: Henderson and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
PILLARD, CIRCUIT JUDGE.
question on appeal is whether the Ex Post Facto
Clause forbids applying a current U.S. Sentencing Commission
policy statement, which offers sentence reductions only to
those defendants whose original sentences are not already
below newly reduced guideline ranges, to a defendant whose
crime occurred before that version of the policy statement
took effect. The defendant, Alvaro Alvaran-Velez, claims that
he could have gotten a sentence reduction under the version
of the policy statement in effect at the time of his crime.
Using a newer version, he argues, violated the Ex Post
Facto Clause by eliminating a real chance for a shorter
sentence upon guideline range reduction that he believes
existed when he committed the offense. Because, correctly
read, the earlier version did not even apply to him, we
affirm the district court's denial of Alvaran's
motion for a sentence reduction.
violated 21 U.S.C. §§ 959, 960, and 963 by
conspiring between 2005 and 2007 to distribute five kilograms
or more of cocaine, knowing or intending that the cocaine
would be imported into the United States. He was convicted
after a jury trial in 2010. At the time of Alvaran's
sentencing in 2013, the applicable Sentencing Guideline range
was 324 to 405 months imprisonment. The court nevertheless
sentenced him to 180 months, significantly below the
applicable range. In doing so, the court weighed the
seriousness of the offense, Alvaran's lack of a criminal
record, his poor health, letters from his family attesting to
his good character, the fact that he was raised in a poor
family, and that he was far less culpable than another
defendant who had been sentenced to 300 months-all factors
appropriate to consider under 18 U.S.C. § 3553(a).
year following Alvaran's sentencing, the Sentencing
Commission adopted Guideline Amendment 782, which lowered the
base offense levels for certain drug crimes by two levels,
and Amendment 788, which applied the new levels
retroactively. United States Sentencing Commission,
Guidelines Manual, App. C, amends. 782, 788 (Supp.
2014). Had Alvaran been sentenced under the amended
guidelines, the applicable sentencing range would have been
262 to 327 months-substantially lower than the
324-to-405-month range at Alvaran's initial sentencing,
but still well above his actual 180-month sentence.
requested a sentence reduction pursuant to 18 U.S.C. §
3582(c)(2), which allows a district court to reduce the
sentence of a defendant whose guideline range is subsequently
lowered "if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission." But the district court held that a newer
version of one of those policy statements, USSG §
1B1.10, foreclosed reducing his sentence. As revised by a
2011 amendment, Amendment 759, that policy statement set the
bottom of the new guideline range as a floor for sentence
reductions by providing that "the court shall not reduce
the defendant's term of imprisonment . . . to a term that
is less than the minimum of the amended guideline
range." USSG § 1B1.10(b)(2)(A) (2016). Because
Alvaran's sentence was already below the minimum of the
amended guideline range, the district court held that USSG
§ 1B1.10 prevented any further reduction.
contended that applying the policy statement's sentence
reduction floor to deny him a reduction violated the Ex
Post Facto Clause, U.S. Const. art. I, § 9, cl. 3,
because a 2006 version of the policy statement-in force when
he committed his crime-would have allowed the district court
to reduce his sentence in response to the amended guidelines
range. That 2006 policy statement advised a court reducing a
sentence pursuant to guideline amendments to "consider
the term of imprisonment that it would have imposed had the
amendment(s) to the guidelines listed in subsection (c) been
in effect at the time the defendant was sentenced." USSG
§ 1B1.10(b) (2006). Subsection (c) listed twenty-four
amendments that lowered guideline ranges; it did not include
the amendment that lowered Alvaran's sentencing range,
Amendment 782, which would not be passed for another eight
years. Alvaran pointed to an application note to the 2006
version that states that, "[w]hen the original sentence
represented a downward departure, a comparable reduction
below the amended guideline range may be appropriate."
Id. § 1B1.10, comment. (n.3). That application
note, he claimed, shows that, but for the 2011 amendment of
USSG § 1B1.10(b)(2)(A) prohibiting below-guideline
sentence reductions, he would have been eligible for a
reduction below the lowered guideline range comparable to the
original reduction the court granted.
hearing on Alvaran's motion for a sentence reduction, the
district court said that it would lower his sentence
"very substantially" if it could, but that the
then-current Guidelines Manual forbade a reduction. Alvaran
argued that applying the new policy statement with the
guideline reduction violated the Ex Post Facto
Clause because it eliminated his opportunity to invoke the
court's discretion to lower his sentence. The district
review de novo whether applying the 2016 version of USSG
§ 1B1.10 to Alvaran violates the Ex Post Facto
Clause. See United States v. ...