     18-1846-cr
     United States v. Valencia-Lopez

                                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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT
     ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on
 3   the 24th day of October, two thousand nineteen.
 4
 5   Present:
 6               AMALYA L. KEARSE
 7               JOHN M. WALKER, JR.,
 8               DEBRA ANN LIVINGSTON,
 9                     Circuit Judges.
10   _____________________________________
11
12   UNITED STATES OF AMERICA,
13
14                             Appellee,
15
16                    v.                                                 18-1846-cr
17
18   JULIO CESAR VALENCIA-LOPEZ, a/k/a Don C, a/k/a
19   Artista, a/k/a Primo,
20
21                     Defendant-Appellant.
22   _____________________________________
23
24   For Defendant-Appellant:                  Robert Joseph Boyle, New York, New York
25
26   For Appellee:                             Hiral Mehta and David C. James, Assistant United
27                                             States Attorneys, for Richard P. Donoghue, United
28                                             States Attorney for the Eastern District of New York,
29                                             Brooklyn, New York
30
             Appeal from a judgment of the United States District Court for the Eastern District of New


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York (Garaufis, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

          Defendant-Appellant Julio Cesar Valencia-Lopez (“Valencia-Lopez”) appeals from a June

19, 2018 memorandum and order denying his motion for a sentence reduction under 18 U.S.C.

§ 3582(c)(2) on the basis of Amendment 782 to the United States Sentencing Guidelines Manual

(“U.S.S.G.” or “guidelines”).      We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

          Under 18 U.S.C. § 3582(c)(2), a district court “may” modify a sentence where a defendant

“has been sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission.”                18 U.S.C. § 3582(c)(2).      To address a

§ 3582(c)(2) motion, district courts follow a two-step process: first, the court “determine[s] the

prisoner’s eligibility for a sentence modification and the extent of the reduction authorized” by

calculating the amended applicable guideline range and comparing it to the original guideline

range; second, the court exercises its discretion and weighs the 18 U.S.C. § 3553(a) factors to

determine whether a reduction is warranted.         See Dillon v. United States, 560 U.S. 817, 827

(2010).     This Court reviews a district court’s determination of eligibility for a sentence reduction

at step one de novo, United States v. Main, 579 F.3d 200, 202–03 (2d Cir. 2009), and factual

determinations as to drug quantity for clear error, United States v. Snow, 462 F.3d 55, 72 (2d Cir.

2006).

          In 2007, Valencia-Lopez pleaded guilty to conspiracy to distribute and possess with intent

to distribute one kilogram or more of heroin.          The Presentence Investigation Report (“PSR”)

initially recommended finding Valencia-Lopez responsible for 4.49 kilograms of heroin.            The


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court held two Fatico hearings to resolve disputed facts; at the latter hearing, a witness testified

that he had received an estimated total of 120 to 130 kilograms of heroin from Valencia-Lopez.

Additionally, the government represented to the court that Valencia-Lopez had admitted in a post-

plea proffer session that he was “probably” responsible for the importation and distribution of 120

to 130 kilograms of heroin.    At sentencing, the parties agreed that a base offense level of 38,

which at that time corresponded to 30 kilograms or more of heroin, was applicable. In seeking

credit for acceptance of responsibility, defense counsel argued that Valencia-Lopez had

“forthrightly indicated” his responsibility for numerous heroin deals, “well over level 38.”    J.A.

42.   The government, arguing for a sentence within the guidelines range, alleged that Valencia-

Lopez was responsible for “130 kilograms of heroin,” which it deemed to be “a staggering amount

of drugs.” J.A. 51.    Valencia-Lopez did not object to the government’s characterization of the

applicable drug weight. Valencia-Lopez was ultimately sentenced to 292 months’ imprisonment

and five years of supervised release, the bottom of the guidelines range of 292 to 365 months’

imprisonment.

       Effective November 2014, the United States Sentencing Commission enacted Amendment

782, which retroactively modified the base offense level for certain drug-related offenses.

U.S.S.G. supp. app. C, amend. 782 (2014). Following Amendment 782, the quantity of heroin

necessary for a base offense level of 38 increased from 30 to 90 kilograms. Id.      In light of this

development, Valencia-Lopez moved in the district court for a reduction of sentence under 18

U.S.C. § 3582(c)(2), arguing that his applicable guidelines range had been reduced to 235 to 293

months’ imprisonment because he had been held responsible for more than 30 but fewer than 90

kilograms of heroin, now resulting in a base offense level of 36 rather than 38.




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         The district court rejected Valencia-Lopez’s motion, determining that the record reflected

that Valencia-Lopez had admitted to responsibility for a drug weight of 120 to 130 kilograms and

that the district court had adopted that finding.      Accordingly, Valencia-Lopez’s applicable

guidelines range was unaffected by Amendment 782, rendering him ineligible for a sentence

reduction.

         On appeal, Valencia-Lopez argues that the district court erred in determining that he was

ineligible for a sentence reduction because the court had made no explicit drug quantity

determination at sentencing.    Emphasizing that there was no dispute as to the base offense level

at the time of sentencing, Valencia-Lopez argues that there was no reason for defense counsel to

object to the government’s representations as to drug quantity.     Valencia-Lopez thus contends

that the record was insufficient for the district court to determine that his applicable guidelines

range was unaffected by Amendment 782.

         We are unpersuaded. In addition to the PSR, district courts may consider a broad range

of sources in making factual determinations as to drug weight, including the “defendant’s

statements during [a] safety valve proffer.”   United States v. Borde, 387 F. App’x 84, 86 (2d Cir.

2010).    Here, the parties rejected the drug weight set forth in the PSR and entered into a proffer

agreement, with the government representing to the court that Valencia-Lopez admitted his

responsibility for 120 to 130 kilograms of heroin at the proffer session.      That admission was

consistent with the testimony of the witness at the Fatico hearing that Valencia-Lopez had

provided him with between 120 and 130 kilograms of heroin.        The district court was justified in

concluding that there was no disagreement as to drug weight, given that Valencia-Lopez did not

dispute the amount set forth in the letter and voiced no opposition to the government’s

representation at sentencing that he had admitted to responsibility for 130 kilograms.      Defense


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counsel’s own statement at sentencing that Valencia-Lopez had “forthrightly” admitted to

responsibility for a drug weight “well over level 38,” J.A. 42, was entirely consistent with the

proffer letter and further justified the district court’s acceptance of the 120 to 130 kilogram amount.

While defense counsel’s decision not to challenge drug weight may have been a strategic choice

driven by the guidelines scheme as it existed at the time, the record is nonetheless sufficient to

support the district court’s finding.

       Though the district court did not expressly state that it was adopting the proffer letter’s

drug quantity, the court did not clearly err in determining that the record as a whole reflected that

it had done so.   In arguing to the contrary, Valencia relies on United States v. Melendez, 679 F.

App’x 68 (2d Cir. 2017), where this Court found clear error in a district court’s determination that

the sentencing judge had adopted the PSR’s drug weight on the sole basis of the judge’s statement

at sentencing that the PSR’s guidelines range (which corresponded to numerous possible drug

weights) had been “accurately computed.”         Melendez, 679 F. App’x at 71.       That reliance is

misplaced. Here, unlike in Melendez, the district court’s adoption of the drug weight finding was

evident based on its statement in an opinion denying Valencia-Lopez’s petition for a writ of habeas

corpus that Valencia-Lopez had “admitted—and still[, at the time of his petition for habeas corpus,

did] not appear to dispute—that he had extensive involvement in the distribution of over 120

kilograms of heroin,”     Valencia-Lopez v. United States, No. 10-cv-02893 (NGG), 2012 WL

2160967, at *10 (E.D.N.Y. June 13 2012).        That finding was consistent with the district court’s

statement at sentencing that it was “clear from the testimony of the witnesses, and also from the

proffer, if you can believe it, that the weight more than justifies a base offense level of 38.” J.A.

46.   The record here is therefore more robust than the one found insufficient in Melendez.




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         Even absent this record evidence of prior adoption, the district court’s explicit finding of a

120 to 130 kilogram drug weight in its memorandum denying the § 3582(c)(2) motion itself

suffices to justify the district court’s denial of the motion, as it was supported by the record and

consistent with the court’s prior factual determinations. See United States v. Rios, 765 F.3d 133,

138 (2d Cir. 2014) (“[N]othing prevents a district court from making new findings of fact when

ruling on a § 3582(c)(2) motion, so long as those findings are not inconsistent with those made at

the original sentencing.” (quoting United States v. Davis, 682 F.3d 596, 612 (7th Cir. 2012)).

Accordingly, there is no basis to disturb the district court’s determination that Valencia-Lopez’s

applicable guidelines range was not reduced by Amendment 782 and that he was therefore

ineligible for a sentence reduction.

                                           *       *       *

         We have considered Valencia-Lopez’s remaining arguments and find them to be without

merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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