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United States v. Rios

United States Court of Appeals, Second Circuit

September 2, 2014

UNITED STATES OF AMERICA, Appellee,
v.
RAUL RIOS, MIGUEL BAUTISTA AKA TITA, Defendants-Appellants

Argued: April 29, 2014

Amended: September 8, 2014.

Page 134

Appeal from the United States District Court for the Southern District of New York. No. 00 Cr. 579 -- Jed S. Rakoff, Judge.

Defendants Raul Rios and Miguel Bautista pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base. Following sentencing by the district court (Rakoff, J.), each defendant twice moved pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence in light of amendments made in 2007 and 2011 to the Sentencing Guidelines that lowered the base offense levels applicable to crimes involving certain quantities of cocaine base. After holding an evidentiary hearing as to Rios's first motion, at which Bautista was neither present nor represented, the district court denied each defendant's motions. Both defendants appealed, raising substantially similar but not identical arguments. We hold that the district court appropriately held an evidentiary hearing, did not clearly err in making a drug quantity finding that supported not reducing the sentences, properly denied Bautista's motion for a reduced sentence, and did not violate Bautista's constitutional rights. Accordingly, we AFFIRM.

ROBERT A. CULP, Garrison, N.Y., for Defendant-Appellant Miguel Bautista.

LAURIE S. HERSHEY, Manhasset, N.Y., on the brief, for Defendant-Appellant Raul Rios.

CHRISTOPHER J. DIMASE (Timothy D. Sini, Brent S. Wible, on the brief), Assistant United States Attorney, for Preet Bharara, United States Attorney, United States Attorney's Office for the Southern District of New York, New York, N.Y., for Appellee.

Before: WALKER, POOLER, and WESLEY, Circuit Judges.

OPINION

Page 135

John M. Walker, Jr., Circuit Judge:

Defendants Raul Rios and Miguel Bautista pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base. Following sentencing by the district court ( Rakoff, J.), each defendant twice moved pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence in light of amendments made in 2007 and 2011 to the Sentencing Guidelines that lowered the base offense levels applicable to crimes involving certain quantities of cocaine base. After holding an evidentiary hearing as to Rios's first motion, at which Bautista was neither present nor represented, the district court denied each defendant's motions. Both defendants appealed, raising substantially similar but not identical arguments. We hold that the district court appropriately held an evidentiary hearing, did not clearly err in making a drug quantity finding that supported not reducing the sentences, properly denied Bautista's motion for a reduced sentence, and did not violate Bautista's constitutional rights. Accordingly, we AFFIRM.

BACKGROUND

I. The Plea Agreement and Sentencing

On November 21, 2000, Raul Rios and Miguel Bautista separately each pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base (" crack cocaine" or " crack" ). In their plea agreements, both stipulated to being responsible for " 1.5 kilograms or more of" crack. Absent relevant statutory maximums, Rios's Guidelines range was 262 to 327 months' imprisonment and Bautista's was 360 months' to life imprisonment. Because of a twenty year statutory maximum, however, the defendants stipulated to Guidelines sentences of 240 months' imprisonment.

The Presentence Report (" PSR" ) prepared by the Probation Department for each defendant determined the same Guidelines ranges as the plea agreements. Each defendant's PSR calculated the defendant's base offense level on the basis that the Offense Conduct section of the PSR stated that " the defendant's criminal activity involved . . . five kilograms of crack." This statement was erroneous as

Page 136

to each defendant, however, because the Offense Conduct sections did not specify the quantity of crack involved in the defendants' crimes.

In 2001, the district judge sentenced each defendant in separate proceedings to 240 months' imprisonment. As to each defendant, the written Statement of Reasons in the judgment " adopt[ed] the factual finding and ...


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