                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 16-4389
                                   _____________

                         UNITED STATES OF AMERICA

                                          v.

                        ADALBERTO VASQUEZ-LIRIANO,

                                          Appellant
                                   _____________

                              On Appeal from the District
                                 of the Virgin Islands
                        District Court No. 3-12-cr-00028-001
                   District Judge: The Honorable Curtis V. Gómez

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                December 11, 2017

         Before: SMITH, Chief Judge, McKEE, and SCIRICA, Circuit Judges

                              (Filed: January 16, 2018)

                              _____________________

                                    OPINION*
                              _____________________

SMITH, Chief Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      Adalberto Vasquez-Liriano pleaded guilty in 2013 in the District Court of the

Virgin Islands to possession with intent to distribute five kilograms or more of cocaine

hydrochloride. He was sentenced to 120 months of imprisonment, followed by 60 months

of supervised release—the mandatory minimum sentence for his crime of conviction. 21

U.S.C. § 841(b)(1)(A). In 2014, and again in 2016, Vasquez-Liriano moved to reduce his

sentence, arguing that Amendment 782 to the U.S. Sentencing Guidelines made him

eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). In December 2016, the

District Court denied both motions. Vasquez-Liriano timely appealed the denial of his

motions. We will affirm.1

                                            I.

      Vasquez-Liriano argues he is eligible for a reduced sentence under 18 U.S.C.

§ 3582(c)(2), which provides that a court

      may . . . [reduce] a term of imprisonment once it has been imposed . . . in
      the case of a defendant who has been sentenced to a term of imprisonment
      based on a sentencing range that has subsequently been lowered by the
      Sentencing Commission . . . if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

      A sentence is not “based on a sentencing range that has subsequently been

lowered” if the relevant change to the Sentencing Guidelines “does not have the effect of


1
  The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. § 1612(a).
We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
legal interpretation of the Sentencing Guidelines and relevant statutes de novo; we review
the District Court’s ultimate ruling on a motion to reduce a sentence under 18 U.S.C.
§ 3852(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 & n.2 (3d
Cir. 2009).
                                            2
lowering the defendant’s applicable guideline range because of the operation of another

guideline or statutory provision (e.g., a statutory mandatory minimum term of

imprisonment).” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10 cmt. n.1(a);

United States v. Ortiz-Vega, 744 F.3d 869, 873 (3d Cir. 2014) (“[I]f a defendant is

subjected to a mandatory minimum, he or she would not be given a sentence ‘based on a

sentencing range that has subsequently been lowered.’ ”).

      Vasquez-Liriano’s sentence was based on a mandatory minimum sentence

established by 21 U.S.C. § 841(b)(1)(A), not on a guideline range subsequently affected

by Amendment 782. Had Vasquez-Liriano been sentenced after Amendment 782 went

into effect, his sentence would have been unchanged.2 The mandatory minimum sentence

of 120 months’ imprisonment exceeds both the pre-Amendment guideline range of 87 to

108 months’ imprisonment, App. at 32, and the post-Amendment guideline range of 70 to

87 months’ imprisonment. See U.S.S.G. app. C, amend. 782 (applying a two-level

reduction to base offense level for certain drug offenses); U.S.S.G. Sentencing Table

(2012). Because Vasquez-Liriano’s mandatory minimum sentence exceeded both the pre-

and post-Amendment guideline ranges, the mandatory minimum sentence would become

the guideline sentence in either case. U.S.S.G. § 5G1.1(b) (“Where a statutorily required

minimum sentence is greater than the maximum of the applicable guideline range, the

statutorily required minimum sentence shall be the guideline sentence.”). Vasquez-

Liriano was sentenced based on a required minimum sentence, not a guideline range




                                            3
subsequently lowered by the Sentencing Commission, and he is not eligible for a

reduction in his sentence.3

                                              II.

         Vasquez-Liriano also argues, for the first time on appeal, that he might qualify for

the “safety valve” of 18 U.S.C. § 3553(f), which would excuse him from the application

of the mandatory minimum sentence. Not only has Vasquez-Liriano never argued that the

safety valve applied to his case, he conceded at his sentencing hearing that it did not

apply. Counsel acknowledged that the safety valve did not apply, and that the mandatory

minimum sentence of ten years’ imprisonment controlled the sentencing range. App. at

29–31.

         By explicitly waiving this argument at his sentencing hearing, Vasquez-Liriano is

foreclosed from making it now. See United States v. Batista, 483 F.3d 193, 199 n.4 (3d

Cir. 2007).

                                             III.

         We will affirm the District Court’s order denying Vasquez-Liriano’s motions to

reduce his sentence.


2
  Vasquez-Liriano argues that the application of the “safety valve” provided by 18 U.S.C.
§ 3553(f), in combination with Amendment 782, could result in a reduced sentence below
the mandatory minimum. As we discuss below, the safety valve does not apply.
3
  Vasquez-Liriano argues that, because the District Court did not make an explicit finding
under § 5G1.1(b) that the mandatory minimum sentence was the guideline sentence, the
District Court did not sentence him based on the mandatory minimum, but instead
sentenced him based on the guideline range of 87 to 108 months’ imprisonment with an
upward departure to 120 months’ imprisonment. Appellant’s Br. 10, 13. The District
Court was well aware of the mandatory minimum, and sentenced Vasquez-Liriano
accordingly. App. at 29, 32, 33.
                                              4
