15-3828-cr
United States v. Aguilar


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

               At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 28th day of September, two thousand sixteen.

PRESENT: JON O. NEWMAN,
                 RALPH K. WINTER,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                                  No. 15-3828-cr

ARNOLD AGUILAR,
                                 Defendant-Appellant,

FRANCISCO LUIS AGUILAR, VICTOR LOPEZ,
                                 Defendants.*
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FOR APPELLANT:                                    Arnold Aguilar,        pro     se,   Philipsburg,
                                                  Pennsylvania.

FOR APPELLEE:                                    Michael E. Runowicz, Marc H. Silverman,
                                                 Assistant United States Attorneys, for Deirdre
                                                 M. Daly, United States Attorney for the District
                                                 of Connecticut, New Haven, Connecticut.

*
    The Clerk of Court is directed to amend the caption as set forth above.

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 1
 2         Appeal from a judgment of the United States District Court for the District of

 3   Connecticut (Warren W. Eginton, Judge).

 4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 5   AND DECREED that the judgment entered on August 18, 2015, is AFFIRMED.

 6         Defendant Arnold Aguilar was convicted in 1993 following a guilty plea to one

 7   count of kidnapping conspiracy and multiple substantive and conspiratorial drug

 8   trafficking crimes.    Originally sentenced to 405 months’ imprisonment, Aguilar,

 9   proceeding pro se, appeals from the 369-month sentence imposed upon the grant of his

10   motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782

11   to the United States Sentencing Guidelines. We review a grant of § 3582(c)(2) relief for

12   abuse of discretion, see United States v. Johnson, 732 F.3d 109, 113 (2d Cir. 2013),

13   which we will identify only when a court’s decision rests on an error of law or clearly

14   erroneous factual finding, or cannot otherwise “be located within the range of permissible

15   decisions.” United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009) (alteration and

16   internal quotation marks omitted). Aguilar purports to identify legal error in the district

17   court’s miscalculation of his post-reduction Guidelines range, see, e.g., United States v.

18   Wernick, 691 F.3d 108, 117 (2d Cir. 2012) (stating miscalculation is procedural error),

19   and its failure adequately to explain its decision, see 18 U.S.C. § 3553(c) (requiring

20   “statement of reasons”); United States v. Christie, 736 F.3d 191, 196 (2d Cir. 2013)

21   (noting explanation requirement applies to resentencing).       We assume the parties’




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 1   familiarity with the facts and record of prior proceedings, which we reference only as

 2   necessary to explain our decision to affirm.

 3   1.     Guidelines Calculation

 4          The district court did not err in recalculating Aguilar’s Guidelines range. In

 5   granting § 3582(c)(2) relief, a district court is required to “‘determin[e] the amended

 6   guideline range that would have been applicable to the defendant’ had the relevant

 7   amendment been in effect at the time of the initial sentencing.” Dillon v. United States,

 8   560 U.S. 817, 827 (2010) (quoting U.S.S.G. § 1B1.10(b)(1)). In doing so, the district

 9   court “shall leave all other guideline application decisions unaffected.”         U.S.S.G.

10   § 1B1.10(b)(1); accord Dillon v. United States, 560 U.S. at 827.

11          At Aguilar’s initial sentencing, his four drug crimes were grouped, resulting in an

12   adjusted offense level of 42 for those offenses. See U.S.S.G. § 3D1.2. Meanwhile, his

13   kidnapping conspiracy crime had an adjusted offense level of 33.          Because of the

14   nine-level difference in the offense levels, only the higher applied, see id. § 3D1.4,

15   which, with a criminal history category of I, resulted in a Guidelines range of 360 months

16   to life imprisonment. The district court sentenced Aguilar to a 405-month prison term,

17   45 months above the low end of the Guidelines range.

18          On resentencing to afford Aguilar the benefits of Amendment 782, which reduced

19   offense levels for certain drug crimes, the district court correctly modified only the base

20   offense level for Aguilar’s grouped drug crimes, from 42 to 40. Because the amended

21   differential in the offense levels for Aguilar’s drug crimes and his kidnapping crime was

22   now seven rather than nine, the district court correctly employed the higher level

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 1   enhanced by one—to 41—pursuant to U.S.S.G. § 3D1.4. At this amended offense level,

 2   the district court thus correctly calculated Aguilar’s new Guidelines range as 324 to 405

 3   months’ imprisonment.

 4         Aguilar argues that his total offense level should have been 40 because his

 5   kidnapping crime should always have been grouped with his drug offenses because they

 6   were part of a common scheme. Such a change was not warranted on resentencing

 7   because the initial grouping decision was correct, “was not affected by the Commission’s

 8   amendment to § 2D1.1,” and, therefore, was “outside the scope of the proceeding

 9   authorized by § 3582(c)(2).” Dillon v. United States, 560 U.S. at 831.

10         In sum, Aguilar’s calculation challenge fails on the merits.

11   2.    Explanation for Sentence

12         Aguilar’s argument that the district court failed to provide sufficient explanation

13   for imposing a 369-month sentence is similarly meritless. The district court originally

14   imposed a 405-month sentence, 45 months above the low end of the then-applicable

15   360-month-to-life Guidelines range. In explaining the reasons for this sentence, the

16   district court referenced Guidelines enhancements that included the quantity of drugs

17   dealt (50–150 kilograms of cocaine), the use of firearms in both the drug trafficking and

18   kidnapping, Aguilar’s leadership role in the drug crimes, the lengthy time the kidnapping

19   victim was held, and the demand for a ransom. It also referenced insights about the

20   crimes that it had obtained by presiding over the trial of confederate Francisco Aguilar,

21   which indicated that this had been “one of the most significant conspiracies in this

22   district” since the long-serving district judge had been on the federal bench. Gov’t

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 1   App’x 42. Finally, the district court noted defendant’s high level of intelligence, which

 2   he had not directed to paths that would lawfully reward himself or society. This was

 3   more than adequate to satisfy 18 U.S.C. § 3553(c). See Rita v. United States, 551 U.S.

 4   338, 356–59 (2007) (observing that district court ordinarily need only indicate it

 5   “considered the evidence and arguments”).

 6          On this record, when the district judge, after giving Aguilar the benefit of

 7   Amendment 782 in his Guidelines calculation, again imposed a sentence 45 months

 8   above the low end of the amended Guidelines range, “the reasons for the district court’s

 9   actions [were] obvious from the history of the case,” and the district court did not abuse

10   its discretion in providing no further explanation. United States v. Christie, 736 F.3d at

11   196.

12   3.     Conclusion

13          We have considered Aguilar’s remaining arguments and conclude that they are

14   without merit. Accordingly, the decision of the district court is AFFIRMED.

15                                     FOR THE COURT:
16                                     CATHERINE O’HAGAN WOLFE, Clerk of Court
17




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