            Case: 15-10597   Date Filed: 08/13/2015   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10597
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:09-cr-60042-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CINDY MORAN-SANCHEZ,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 13, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:
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      Cindy Moran-Sanchez was employed as a Customs and Border Patrol (CBP)

Officer when she conspired to use her government position and contacts to

smuggle cocaine and heroin into the United States. She appeals the denial of her

motion for a sentence reduction based on Amendment 782 to the sentencing

guidelines.

                                         I.

      The factual statement attached to Moran-Sanchez’s plea agreement tells the

story of her crime. In February 2005, she traveled to the Dominican Republic to

meet with Juan Baez, a convicted felon who had recently been deported from the

United States. Less than one year later, in September 2006, she began her

employment as a CBP Officer in the Miami International Airport. At the time,

Moran-Sanchez’s husband and sister worked at Fort Lauderdale International

Airport — he as a Transportation Security Administration Officer and she as a

CBP Officer.

      On June 28, 2006, Moran-Sanchez traveled again to the Dominican Republic

to meet Baez, this time with her husband and sister along for the trip. While there,

the group formed a plan to smuggle drugs into the United States. They agreed that

Baez would reenter the country using the false identity “Anibal Acosta” and that he

would recruit couriers to travel back and forth between the two countries with the

illegal narcotics. Moran-Sanchez, her husband, and her sister would use their


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government positions and contacts to assist Baez with his illegal reentry and then

assist the couriers with passing through customs and TSA checkpoints with the

narcotics. Moran-Sanchez provided Baez with information related to the manner

in which the couriers should dress, the days on which they should travel, and the

best way to purchase their tickets to decrease the likelihood of detection. The

group agreed that Baez would pay a fee to his co-conspirators, including Moran-

Sanchez, for each kilogram of narcotics successfully smuggled into the United

States.

      Baez reentered the United States using the identity of “Anibal Acosta” on

September 17, 2006. He then recruited a drug courier by the name of David

Rosario. He provided Rosario’s name to Moran-Sanchez, who in turn provided it

to her sister. Baez and Moran-Sanchez discussed dates on which Rosario would

attempt to enter the United States through the Fort Lauderdale International

Airport, and she agreed to coordinate the shipment of the narcotics by commercial

carrier to New York. On April 22, 2007, Rosario was arrested attempting to enter

the United States with a suitcase containing 16.1 kilograms of heroin. Moran-

Sanchez informed Baez that Rosario had been arrested and the narcotics seized.

      Moran-Sanchez was arrested and charged with knowingly conspiring to

import controlled substances — five kilograms or more of a substance containing a

detectable amount of cocaine, and one kilogram or more of a substance containing


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a detectable amount of heroin — in violation of 21 U.S.C. §§ 952(a) and 963. She

pleaded guilty.

      The Presentence Investigation Report (PSR) calculated an adjusted offense

level of 37 and a criminal offense category of I, resulting in an advisory guidelines

range of 210 to 262 months imprisonment. The district court sustained Moran-

Sanchez’s unopposed objection to the PSR’s drug quantity calculation, which

reduced the adjusted offense level to 35 and the advisory guidelines range to 168 to

210 months imprisonment.

      In addition to the drug quantity objection, Moran-Sanchez moved for a

downward departure pursuant to U.S.S.G. § 5K2.13 (diminished mental capacity).

At her sentence hearing on September 21, 2010, Moran-Sanchez argued that she

was vulnerable to Baez’s corruption because she suffered from posttraumatic stress

disorder after many years of physical and sexual abuse at the hands of her mother,

a family friend, and her husband. The government responded with evidence

showing that Moran-Sanchez was actually “the driving force” behind the

conspiracy and the “boss” of her co-conspirators, and that she had a “longstanding

relationship” with Baez. It introduced a recording of Moran-Sanchez “yelling at

[Baez],” “questioning him,” and “frisking him to see if he was wearing a wire.”

The government further argued that even if posttraumatic stress disorder had

impacted Moran-Sanchez’s reasoning abilities, she had failed to establish a “causal


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connection” between it and the crime. The district court denied the motion for a

downward departure, finding that Moran-Sanchez’s “ability to reason was not

compromised in any way as a result of any form of mental defect.”

      The court then heard argument on the § 3553(a) factors. Moran-Sanchez

maintained, contrary to the government’s assertions, that her role in the conspiracy

was minimal. She asserted that a downward variance was appropriate because it

would bring her sentence in line with those of her “equally culpable” husband and

sister. In response, the government reiterated its position that Moran-Sanchez was

“more culpable” than her sister and her husband. Even before this particular

conspiracy, the government noted, she was a “longstanding drug partner[]” of

Baez. And during this conspiracy, Moran-Sanchez spoke to Baez on the phone

621 times. By comparison, her sister and husband spoke to him only 13 and 11

times, respectively. The government asserted that Moran-Sanchez “corrupted her

sister and . . . her husband” and then “use[d] their positions as United States

officers to corrupt and circumvent the system.” The government also noted that

Moran-Sanchez, while a CBP Officer, had aided and abetted at least two

aggravated felons with illegal reentry.

      The court sentenced Moran-Sanchez to 168 months imprisonment — the

low end of the advisory guidelines range — followed by 5 years supervised

release. The court stated that it had considered the § 3553(a) factors and that the


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sentence imposed was necessary “to provide just punishment and to afford

adequate deterrence to future criminal conduct, not only by this defendant, but by

others.”

      Moran-Sanchez appealed. Her counsel filed a motion to withdraw as

counsel, supported by an Anders brief. Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967). We granted the motion and affirmed Moran-Sanchez’s

conviction and sentence, concluding that “examination of the entire record

reveal[ed] no arguable issues of merit.” United States v. Moran-Sanchez, No. 10-

14648 (11th Cir. Aug. 3, 2011).

      On September 10, 2014, Moran-Sanchez filed a § 3582(c)(2) motion to

reduce her sentence based on Amendment 782 to the sentencing guidelines, which

lowered the penalties for most drug offenses by reducing offense levels on the

§ 2D1.1 drug quantity table. She argued that the court should reduce her sentence

because she had strong family ties and had participated in extensive post-

sentencing rehabilitation and training. The government conceded that Amendment

782 was applicable to Moran-Sanchez’s case and noted that the correct advisory

guidelines range, once the 2-level reduction was applied, was 135 to 168 months.

But it argued that the § 3553(a) factors did not support a sentence reduction.




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      In its order denying Moran-Sanchez’s motion, the district court agreed with

the government that Amendment 782 applied and also that the § 3553(a) factors

weighed against a sentence reduction. The court explained:

      The history and characteristics of the Defendant and the nature and
      circumstances of the offense strongly militate against a reduction of
      her sentence. She utilized her position as a [CBP] Officer, her sister’s
      position as a [CBP] Officer, and her husband’s position as a TSA
      supervisor to import heroin into the United States. In addition, Mrs.
      Moran-Sanchez aided and abetted the illegal entry into the United
      States of aliens. She engaged in this conduct for approximately three
      years. The Court finds no mitigation here.

This is Moran-Sanchez’s appeal.

                                          II.

      “We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003). Once it is determined that an amendment to the sentencing

guidelines is applicable to the incarcerated defendant, a district court must follow a

two-part analysis. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000).

First, the court must recalculate the defendant’s sentence by “substituting the

amended guideline range for the originally applied guideline range.” Id. Second,

the court must decide whether, in its discretion and in light of the § 3553(a)

sentencing factors, it will impose the newly calculated sentence or retain the

original sentence. Id. at 781. “The district court is not required to articulate the
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applicability of each [§ 3553(a)] factor, as long as the record as a whole

demonstrates that the pertinent factors were taken into account.” United States v.

Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (quotation marks omitted).

      Here, the court did not abuse its discretion in denying Moran-Sanchez’s

§ 3582(c)(2) motion. Although Amendment 782 altered Moran-Sanchez’s original

base offense level, we have explicitly rejected her suggestion that a district court

must reduce a defendant’s sentence pursuant to § 3582(c)(2) where a retroactive

amendment lowers the guidelines range. United States v. Vautier, 144 F.3d 756,

760 (11th Cir. 1998) (“The grant of authority to the district court to reduce a term

of imprisonment [under § 3582(c)(2)] is unambiguously discretionary.”). The

district court stated that it had considered the § 3553(a) factors and specifically

identified “the history and characteristics of [Moran-Sanchez]” and “the nature and

circumstances of the offense” as two factors that weighed heavily in favor of

retaining the original sentence.

      Moran-Sanchez asserts that the court erred by considering “information” that

it had not considered during her original sentencing. That assertion is not

supported by the record. And even if it were, that would not matter: we have held

that a resentencing court has discretion to consider information that it did not

consider during the original sentencing. See Williams, 557 F.3d at 1256 (stating




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that a resentencing court may consider, among other things, a defendant’s post-

sentencing conduct).

      AFFIRMED.




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