Opinion
21 Cr. 99-1 (KPF)
07-25-2024
UNITED STATES OF AMERICA v. JUAN FRANCISCO CUARTAS VILLEGAS, Defendant.
ORDER
KATHERINE POLK FAILLA, District Judge.
In December 2020, Juan Francisco Cuartas Villegas orchestrated the importation of 505 kilograms of cocaine from Colombia to the United States, hidden in a false wall of an historic yacht, the Varuna, that he had purchased several years earlier. He now moves for compassionate release, in the form of a resentencing to a term of imprisonment within the range of 18 to 24 months, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). For the reasons set forth in the remainder of this Order, the Court denies Cuartas Villegas's motion.
BACKGROUND
Cuartas Villegas and three co-defendants were apprehended on the Varuna by the U.S. Coast Guard on December 28, 2020, and charged by complaint in this District on January 7, 2021. (Dkt. #1). Cuartas Villegas subsequently pleaded guilty on October 28, 2022, to conspiring to distribute and to possess with the intent to distribute five kilograms and more of mixtures and substances containing a detectable amount of cocaine on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503(a)(1) and 70506(a), and 21 U.S.C. § 960(b)(1)(B). (Dkt. #8 (indictment (the “Indictment”)), 67 (transcript of plea proceedings)). He pleaded guilty pursuant to a written plea agreement with the Government in which, among other things, he stipulated to a drug quantity in excess of 450 kilograms of cocaine, and to role enhancements for (i) acting as a pilot, copilot, captain, navigator, or any other operation officer on the ship and (ii) serving an organizer, leader, manager, or supervisor of the charged conspiracy. (Dkt. #77 (Final Presentence Investigation Report (“PSR”)) at ¶ 5).
While the parties stipulated to a sentencing range under the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) of 324 to 405 months' imprisonment (PSR ¶ 5(i)), the Court ultimately sentenced Cuartas Villegas on January 27, 2023, principally to a term of 200 months' imprisonment (Dkt. #81 (judgment), 95 (transcript of sentencing proceedings (“Sent. Tr.”))). On February 1, 2023, the Court filed the written judgment in this case. (Dkt. #81). On February 14, 2023, Cuartas Villegas filed a notice of appeal from this Court's sentence. (Dkt. #84). That appeal remains pending. See United States v. Cuartas Villegas, No. 23-6152 (2d Cir.).
On October 11, 2023, Cuartas Villegas, proceeding pro se, filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Dkt. #125). Pursuant to an order from this Court (Dkt. #129), the Government filed its response on February 8, 2024 (Dkt. #136). Cuartas Villegas was offered several opportunities to submit a reply brief, the last of which expired on June 15, 2024. (See Dkt. #129, 132, 135, 146).
DISCUSSION
A. Applicable Law
1. The Significance of the Pending Appeal
A district court may not reduce a sentence pursuant to § 3582(c) while an appeal of the defendant's sentence is pending. See, e.g., United States v. Capers, No. 15 Cr. 607 (JPC), 2023 WL 7626560, at *3 (S.D.N.Y. Nov. 14, 2023), cited in United States v. Senior, No. 20 Cr. 626-08 (PMH), 2023 WL 8355920, at *1 (S.D.N.Y. Dec. 1, 2023); see also Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”). For this reason, numerous “[d]istrict courts in this Circuit have uniformly found that they lack jurisdiction to consider a defendant's motion for compassionate release while an appeal from the defendant's conviction was pending.” United States v. Larkin, No. 19 Cr. 833 (SHS), 2022 WL 1154313, at *1 (S.D.N.Y. Apr. 19, 2022) (collecting cases). “Once [the defendant] filed his notice of appeal challenging the Court's sentence, jurisdiction over the questions raised in his § 3582(c) motion transferred to the Second Circuit.” United States v. Martin, No. 18 Cr. 834 (PAE), 2020 WL 1819961, at *2 (S.D.N.Y. Apr. 10, 2020). Accordingly, Cuartas Villegas's appeal divested this Court of jurisdiction over any issues raised on appeal, including the sentence imposed, until the appeal is resolved.
Although the Court lacks jurisdiction over this application, it may nonetheless consider the merits of the motion pursuant to Federal Rule of Criminal Procedure 37(a). See United States v. Rodriguez, No. 20 Cr. 513-2 (AT), 2024 WL 1464661, at *2 (S.D.N.Y. Apr. 4, 2024) (noting that “Federal Rule of Criminal Procedure 37 provides a jurisdictional workaround”). Because the Court would deny Cuartas Villegas's motion had he not filed a notice of appeal, giving due consideration to the interests of judicial economy, the Court reaches the merits of his motion pursuant to Rule 37(a). The Court concludes that a reduction in Cuartas Villegas's sentence is neither “consistent with the applicable policy statements issued by the Sentencing Commission,” 18 U.S.C. § 3582(c)(1)(A)(i), nor supported by the “factors set forth in section 3553(a),” Id. § 3582(c)(1)(A).
See Fed. R. Crim. P. 37:
Rule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal
(a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
(b) Notice to the Court of Appeals. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue.
(c) Remand. The district court may decide the motion if the court of appeals remands for that purpose.
2. The Operation of 18 U.S.C. § 3582(c)(1)(A)(i)
“Federal courts are forbidden, as a general matter, to ‘modify a term of imprisonment once it has been imposed,' 18 U.S.C. § 3582(c); but the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011). Compassionate release is one of the limited exceptions enumerated in 18 U.S.C. § 3582(c). Under the First Step Act, “upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal [or] a failure of the Bureau of Prisons [(“BOP”)] to bring a motion on the defendant's behalf,” a court may reduce a defendant's sentence, on a defendant's motion, if it finds that “extraordinary and compelling circumstances warrant such a reduction,” and that “such a reduction is consistent with the applicable policy statements issued by the [United States] Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). “The defendant has the burden to show he is entitled to a sentence reduction.” United States v. Ebbers, No. 02 Cr. 1144-3 (VEC), 2020 WL 91399, at *4 (S.D.N.Y. Jan. 8, 2020) (citing United States v. Butler, 970 F.2d 1017, 1026 (2d Cir. 1992)); accord United States v. Jacques, No. 20-3276, 2022 WL 894695, at *1 (2d Cir. Mar. 28, 2022) (summary order).
“[T]he existence vel non of ‘extraordinary and compelling reasons' determines only whether a defendant can be considered for release - the existence of such reasons does not mandate release.” United States v. Ebbers, 432 F.Supp.3d 421, 430 (S.D.N.Y. 2020); accord United States v. Madoff, 465 F.Supp.3d 343, 349 (S.D.N.Y. 2020); see also United States v. Israel, No. 05 Cr. 1039 (CM), 2019 WL 6702522, at *11 (S.D.N.Y. Dec. 9, 2019) (“A court is not required to reduce a sentence on compassionate release grounds, even if a prisoner qualifies for such reduction.... [Section 3582] was drafted using the word ‘may,' not ‘must.'”). The Court must also consider the “factors set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(1)(A).
The statutory scheme thus requires that a court determine that a defendant has exhausted his administrative remedies; that “extraordinary and compelling” reasons exist for a reduction in sentence; and that such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission. See United States v. Keitt, 21 F.4th 67, 71 (2d Cir. 2021); accord United States v. Halvon, 26 F.4th 566, 570 (2d Cir. 2022). Once these elements are met, the court must then consider and determine whether the § 3553(a) factors support early release. Application of the § 3553(a) factors, in turn, requires an assessment of whether the relevant factors “outweigh the ‘extraordinary and compelling reasons' warranting compassionate release ... [and] whether compassionate release would undermine the goals of the original sentence.” Ebbers, 432 F.Supp.3d at 431. Those factors include, among others: (i) “the nature and circumstances of the offense and the history and characteristics of the defendant,” and (ii) “the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense ... [and] to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a).
B. Analysis
1. Cuartas Villegas Has Not Identified an Extraordinary and Compelling Reason
The Government does not argue that Cuartas Villegas has failed to exhaust his administrative remedies (see Dkt. #136 (“Gov't Opp.”) at 5), and the Court therefore proceeds to consider the merits of his claims. As explained in the remainder of this section, the Court concludes that Cuartas Villegas has failed to establish the existence of an extraordinary and compelling reason for a reduction in sentence.
To aid district courts in resolving motions brought under § 3582(c)(1)(A)(i), the Sentencing Commission has issued a Policy Statement setting forth certain definitions, including a non-exhaustive list of examples of factors that might be considered “extraordinary and compelling.” See U.S. SENTENCING GUIDELINES MANUAL § 1B1.13 (U.S. Sentencing Comm'n 2018); see Ebbers, 432 F.Supp.3d at 426. The Court understands Cuartas Villegas to be arguing that the Court sentenced him incorrectly because the Indictment in this case “failed to state a specific drug quantity that is personally associated to him.” (Dkt. #125 (“Def. Br.”) at 5-6; see also id. at 7 (alleging Court's “failure to show that Petitioner's drug quantity attributed to him, is in the 5 kilograms or more of cocaine range”)). According to Cuartas Villages, this error foreclosed the Court from imposing the enhanced penalty of a 10-year mandatory minimum term of imprisonment (id. at 6), and, indeed, necessitates a resentencing where the base offense level is calculated using the lowest quantity of cocaine contained in the Guidelines drug table, which - acknowledging the other Guidelines enhancements to which Cuartas Villegas stipulated - would yield a Guidelines range of 18 to 24 months' imprisonment. (Id. at 7-8).
As an initial matter, it is not clear to the Court that a failure to calculate the Guidelines correctly in this case would suffice as an “extraordinary and compelling reason” under § 3582(c)(1)(A)(i). Compare United States v. Fernandez, 104 F.4th 420, 430 (2d Cir. 2024) (“Absent such a clear declaration of intent, we conclude that since challenges to the validity of a conviction must be made under section 2255, they cannot qualify as ‘extraordinary and compelling reasons' under section 3582(c)(1)(A). Compassionate release is not a channel to habeas relief or an end run around the limitations of section 2255.”), with United States v. Lopez, 523 F.Supp.3d 432, 438 (S.D.N.Y. 2021) (predicating sentence reduction on undetected, substantial, and “truly extraordinary” sentencing error that was not considered on direct appeal or under § 2255, but noting that “most errors in an original sentencing are not likely to qualify as an extraordinary and compelling reason for a sentence reduction”). As it happens, however, Cuartas Villegas's arguments are legally and factually incorrect.
To the extent that Cuartas Villegas is suggesting that cases such as Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013), require the precise amount of cocaine that was attributed to him to be pleaded in the Indictment, he is incorrect. (See Def. Br. 6-7). It is enough for an indictment to recite the threshold quantity of cocaine that implicates the higher penalty provisions of the particular controlled substances statute. See, e.g., United States v. McGee, 522 Fed.Appx. 59, 60 (2d Cir. 2013) (summary order) (“But if the drug quantity will trigger the enhanced penalties in that section, that quantity must be charged in the indictment.” (citing United States v. Thomas, 274 F.3d 655, 660 (2d Cir. 2001) (en banc)); see also United States v. Holloway, 956 F.3d 660, 665 (2d Cir. 2020) (recalling that Thomas was where the Second Circuit “first held that the drug quantity thresholds under 21 U.S.C. § 841(b)(1)(A) were elements of the offense which needed to be alleged in a charging document” (emphasis added)); United States v. Davis, 961 F.3d 181, 186 (2d Cir. 2020) (noting that element of crack conspiracy offense that must be pleaded in indictment and either found by jury or admitted by defendant is “Section 841(b)(1)(A)(iii)'s quantity threshold, then ‘50 grams or more'” (emphasis added)). The Indictment here specified the threshold quantity of five kilograms and more of cocaine that was required to trigger the enhanced penalty provisions of 21 U.S.C. § 960(b)(1)(B), and as a member of the charged conspiracy, that amount was “attributable to” Cuartas Villegas. (Dkt. #125 at 6).
At times in this section, the Court relies on cases discussing 21 U.S.C. § 841, which courts have found to contain analogous penalty provisions. See generally Lobo v. United States, No. 15 Cr. 174 (LGS), 2023 WL 1861222, at *7 (S.D.N.Y. Feb. 9, 2023) (noting that “21 U.S.C. § 841 ... is distinct from but analogous to 21 U.S.C. § 960 for all relevant purposes”).
Even had the Indictment failed to specify a threshold quantity of cocaine, the Court would have been permitted to sentence Cuartas Villegas - as it did here - to a term of imprisonment at or below the twenty-year statutory maximum specified in 21 U.S.C. § 960(b)(3). See United States v. Thomas, 274 F.3d 655, 661 (2d Cir. 2001) (en banc) (“By contrast, had [the district court] not made findings concerning drug quantity, § 841(b)(1)(C) would have imposed a statutory maximum term of imprisonment of twenty years for an offense involving an unspecified quantity of cocaine or crack cocaine.”).
To the extent that Cuartas Villegas is suggesting that the Court erred in failing to find, at his sentencing, a specific quantity of cocaine attributable to him that was five kilograms or more, he is also incorrect. In controlled substance cases involving an enhanced penalty structure, the Second Circuit has confirmed that “drug quantity is an element that must always be pleaded and proved to a jury or admitted by a defendant to support conviction or sentence on an aggravated offense.” United States v. Gonzalez, 420 F.3d 111, 131 (2d Cir. 2005). Here, it would have been sufficient for Cuartas Villegas to have admitted to the threshold quantity of five kilograms of cocaine; the Court could then have made additional findings regarding the drug quantity attributable to him by a preponderance of the evidence. See United States v. Cristobal, No. 23-6107, 2024 WL 1506750, at *6 (2d Cir. Apr. 8, 2024) (summary order) (“At sentencing, the government bears the burden of proving drug quantity by a preponderance of the evidence, see United States v. Colon, 961 F.2d 41, 43 (2d Cir. 1992), and we review the district court's drug-quantity calculation for clear error, see United States v. Jones, 531 F.3d 163, 176 (2d Cir. 2008).”); cf. United States v. Helm, 58 F.4th 75, 89 (2d Cir. 2023) (“In the context of a drug conspiracy, ‘relevant conduct' under Guideline § 1B1.3(a)(1)(A) includes a quantity of drugs with which a defendant is directly and personally involved even if he lacks knowledge of the specific drug type.”). The fact that more than 500 kilograms of cocaine was recovered in a single seizure from a ship where Cuartas Villegas was on board, and where he acknowledged being owner and master of that ship, would have made such a finding easy.
In point of fact, however, during his plea allocution, Cuartas Villegas admitted to the 450-kilogram threshold that corresponds with the Guidelines base offense level of 38 that he now challenges. (See Dkt. #67 (plea transcript) at 33 (“While in Cartagena, Colombia, we discuss[ed] and agreed to a plan as to how the narcotics, over 450 kilograms in total, were to be packaged, stored, labeled, and eventually distributed upon the arrival in the U.S. through south Florida.”)). In addition, Cuartas Villegas did not object to the factual findings of his PSR; those findings were adopted by the Court during his sentencing, and they specified a quantity of cocaine in excess of 500 kilograms. (See PSR ¶¶ 13, 16 (calculating a total weight of 505 kilograms); Sent. Tr. 5-6 (adopting PSR's factual findings)). There was, accordingly, no error in calculating Cuartas Villegas's Guidelines range to include a drug quantity attributable to him that was at or above 450 kilograms, and thus there is no factual basis for relief under § 3582(c)(1)(A)(i).
2. The Factors Set Forth in 18 U.S.C. § 3553(a) Counsel Against Any Reduction in Sentence
Even were the Court to have found an “extraordinary and compelling reason,” which it has not, it would still deny Cuartas Villegas's motion after considering the factors set forth in 18 U.S.C. § 3553(a). These factors include “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as the needs “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” “to afford adequate deterrence to criminal conduct,” “to protect the public from further crimes of the defendant,” and “to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C), (a)(6).
This Court sentenced Cuartas Villegas on January 27, 2023, to a term of imprisonment of 200 months, which term was substantially below the applicable Guidelines range of 325 to 405 months. Its analysis of the § 3553(a) remains equally applicable today:
I think what has struck me about this offense was the sheer volume involved[.] I'm not sure I've had a case as a judge with this much cocaine involved, and it is significant to me that it is a U.S. [flagged ship]. As the government noted, it was a privilege [of] Mr. Cuartas [Villegas's] citizenship that he was able to have a U.S. [flagged ship]. It is disturbing to me that this was done on multiple occasions. And there is for me a real issue of general deterrence given this amount of respect for the law, of an appreciation of the seriousness of the offense. And that is also heightened by the fact that Mr. Cuartas [Villegas] was the master of the ship and really
was the one with the ultimate responsibility for this particular transaction.(Sent. Tr. 28). For this independent reason, the Court finds that no further reduction in Cuartas Villegas's sentence is warranted.
CONCLUSION
For the reasons stated above, the Court DENIES Cuartas Villegas's motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The Clerk of Court is directed to mail a copy of this Order to Cuartas Villegas at the address listed below and to add this address to the docket of this case:
Juan Francisco Cuartas Villegas
Reg. No. 21134-104FCI Atlanta
Federal Correctional Institution
P.O. Box 150160
Atlanta, GA 30315
SO ORDERED.