                Case: 15-10636      Date Filed: 01/18/2017      Page: 1 of 7


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-10636
                              ________________________

                            D.C. No. 1:11-cr-20026-KMM-2

UNITED STATES OF AMERICA,

                                                                         Plaintiff-Appellee,

                                           versus

JEISON ARCHIBOLD,

                                                                     Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________
                                  (January 18, 2017)

Before MARCUS, ANDERSON, and GINSBURG,* Circuit Judges.



__________
*Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of Columbia
Circuit, sitting by designation.
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PER CURIAM:

      We have had the benefit of oral argument, and have carefully reviewed the

briefs of the parties and relevant parts of the record. For the reasons fully explored

at oral argument, and for the reasons noted below, we conclude that the judgment

of the district court should be affirmed.

                                            I.

      We conclude that the district court properly found during the § 3582

proceedings that defendant was not entitled to relief under § 3582 and amendment

782 because the “[l]arge quantity of drugs keeps [the] base offense level at 38.”

The district court necessarily found that this defendant was properly accountable

for 450 kilograms of cocaine or more such that, even under amendment 782, the

base offense level would remain at 38. This finding in turn necessarily means that

the district court found either: (1) that defendant was accountable for the drug

transaction which defendant and McField-Bent were planning in their March 15,

2010, telephone conversation (with respect to which the district court would have

inferred involved the usual 400 kilograms of cocaine); or (2) that defendant was

accountable for the drug transaction involving 400 kilograms of cocaine about

which defendant and McField-Bent were engaged in May of 2010. The district

court was probably relying on the latter. Especially with respect to the May 2010

transaction, the district court’s finding was amply supported by unobjected-to


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evidence detailed in the PSI Report which was before the district court at

sentencing.

      The district court’s finding was not inconsistent with any finding at the

original sentencing, because the only finding at that time was that the quantity of

drugs was “well over 150 kilograms.” Thus, the district court in this § 3582

proceedings did precisely what this Court in Hamilton 1 directed:

      [I]f the district court finds that its original findings were limited to “at
      least 1.5 kilograms,” the court will need to go further. It will need to
      examine the entire record before it at the time of the original
      sentencing to see if it can make any further findings that will resolve
      the issue of whether 8.4 kilograms or more of crack cocaine should be
      attributed to Hamilton. . . . [The] court may make new findings of fact
      that are supported by the record and are not inconsistent with the
      findings made in the original sentencing proceedings. . . . The district
      court may receive additional briefing but should not consider any new
      evidence.

715 F.3d at 340. In the instant case, the district court during the § 3582

proceedings would have noted that the only finding made at the original sentencing

was that the quantity of drugs was “well over 150 kilograms.” According to

Hamilton, the district court would need to go further and the district court in this

case did in fact go further. It received briefing from the parties, but it did not

consider any new evidence that was not before it at the original sentencing. The

government’s briefing, to which it is significant to note that the defendant did not

1
      United States v. Hamilton, 715 F.3d 328, 340 (11th Cir. 2013).



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respond, expressly pointed out the appropriate procedure pursuant to Hamilton.

Under Hamilton, if the defendant has been held responsible by the sentencing court

for “at least” the minimum quantity of drugs necessary to qualify for the highest

base offense level, level 38, then the § 3582 judge may determine (based solely on

the evidence that had initially been before the court at the original hearing) whether

there was enough evidence in that record to conclude, by a preponderance of the

evidence, that the defendant was only responsible for a drug amount that would

qualify him for the sentencing reduction, or, on the other hand, whether the

defendant was responsible for a drug amount (450 kilograms of cocaine in this

case) which would keep the base offense level at 38 even under the retroactive

amendment.

      The government briefing then expressly pointed to un-objected-to relevant

conduct facts in the PSI – including in particular the 400 kilograms of cocaine

involved in the May 2010 transaction – which, when added to the 442 kilograms of

cocaine involved in the offense of conviction, totaled well over the 450 kilograms

of cocaine necessary to keep the base offense level at 38. The government’s brief

was filed on December 5, 2014. The district court’s ruling that defendant was

“[n]ot eligible for relief under Amendment 782” because “large quantit[ies] of

drugs keeps base offense level at 38” was not issued until January 22, 2015. Thus,

defendant, who was counseled during the § 3582 proceedings, had ample time to


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respond to the government’s briefing, but did not. The unobjected-to facts in the

PSI, and the facts and discussion during the sentencing hearing, amply support the

district court’s finding that the additional 400 kilograms of cocaine involved in the

May 2010 transaction constituted relevant conduct properly attributable to the

defendant. Consistent with Hamilton, this finding was based solely on evidence

that was already before the district court at the original sentencing, and was not

inconsistent with any finding made by the district court at the original sentencing.

Accordingly, we cannot conclude that the district court’s finding was erroneous.

                                           II.

      The defendant argues for the first time on appeal that the district court in the

§ 3582 proceedings violated the extradition agreement by treating as relevant

conduct the transaction involving 400 kilograms of cocaine about which defendant

and McField-Bent agreed with the confidential informant in May 2010. Because

defendant did not preserve this argument on appeal, we review the argument

pursuant to the plain error analysis. In order to establish plain error, a defendant

must show that (1) an error existed, (2) it was plain, (3) the error affected his

substantial rights, and (4) it seriously affected the fairness, integrity or public

reputation of the judicial proceedings. United States v. DiFalco, 837 F.3d 1207,

1220–21 (11th Cir. 2016) (citations omitted).




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      We need not resolve the merits of defendant’s argument, because we

conclude that it is certainly not plain or obvious that defendant’s argument would

prevail. Thus, defendant has not demonstrated plain error. The language of the

extradition agreement does not plainly or obviously prohibit consideration of the

May 2010 transaction as relevant conduct with the effect of increasing defendant’s

base offense level. That language – that the defendant “may not be tried or

convicted for a prior act different from the one that is the reason for this

extradition” – prohibits only a trial or conviction based on the May 2010

transaction. In this case, the defendant was neither tried nor convicted for the May

2010 transaction. The defendant acknowledges that no Supreme Court or Eleventh

Circuit case indicates that the district court’s ruling here would have violated the

extradition agreement. Indeed, the case law in other circuits strongly suggests that

such extradition clauses would not prohibit consideration of the May 2010

transaction as relevant conduct. However, as noted, we need not resolve the merits

of this issue because defendant’s argument cannot survive the plain error analysis.

                                          III.

      Defendant also argues that the district court lacked subject matter

jurisdiction over his offense, citing United States v. Iguaran, 821 F.3d 1335 (11th

Cir. 2016), and United States v. Bellaizac-Hurtado, 700 F.3d 1245 (11th Cir.

2012). Defendant’s challenge is outside the limited scope of a § 3582 proceeding


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because § 3582(c)(2) does not authorize a general resentencing. Dillon v. United

States, 130 S.Ct. 2683, 2690-91 (2010). See also United States v. Bravo, 203 F.3d

778, 781-82 (11th Cir. 2000). Moreover, Fed.R.Crim.P. 12(b)(2) permits

challenges to the subject matter jurisdiction of the court at any time while the case

is pending, but defendant’s criminal case is no longer pending. Accordingly, we

will not consider defendant’s challenge to the district court’s subject matter

jurisdiction.

      For the foregoing reasons, the judgment of the district court is

      AFFIRMED.




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