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    United States v. Jorge Barragan Mejia, 11th Cir. (2016)

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    This document summarizes a United States Court of Appeals case involving Jorge Barragan Mejia's appeal of the denial of his motion to reduce his sentence based on Amendment 782. The district court originally found Mejia responsible for conspiring to import 13,000 kilograms of cocaine and sentenced him accordingly. In his motion, Mejia argued the original finding was only 150 kilograms, but the district court denied the motion, reiterating the 13,000 kilogram amount. On appeal, Mejia argues the 13,000 kilogram finding was just a passing comment, not the actual quantity determined. The Court of Appeals must now determine if the district court clearly erred in its drug quantity finding at the original sentencing.

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    United States v. Jorge Barragan Mejia, 11th Cir. (2016)

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    This document summarizes a United States Court of Appeals case involving Jorge Barragan Mejia's appeal of the denial of his motion to reduce his sentence based on Amendment 782. The district court originally found Mejia responsible for conspiring to import 13,000 kilograms of cocaine and sentenced him accordingly. In his motion, Mejia argued the original finding was only 150 kilograms, but the district court denied the motion, reiterating the 13,000 kilogram amount. On appeal, Mejia argues the 13,000 kilogram finding was just a passing comment, not the actual quantity determined. The Court of Appeals must now determine if the district court clearly erred in its drug quantity finding at the original sentencing.

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    Filed: 2016-01-29 Precedential Status: Non-Precedential Docket: 15-12172

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    This document summarizes a United States Court of Appeals case involving Jorge Barragan Mejia's appeal of the denial of his motion to reduce his sentence based on Amendment 782. The district court originally found Mejia responsible for conspiring to import 13,000 kilograms of cocaine and sentenced him accordingly. In his motion, Mejia argued the original finding was only 150 kilograms, but the district court denied the motion, reiterating the 13,000 kilogram amount. On appeal, Mejia argues the 13,000 kilogram finding was just a passing comment, not the actual quantity determined. The Court of Appeals must now determine if the district court clearly erred in its drug quantity finding at the original sentencing.

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    Download as PDF or read online from Scribd
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    110 views11 pages

    United States v. Jorge Barragan Mejia, 11th Cir. (2016)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case involving Jorge Barragan Mejia's appeal of the denial of his motion to reduce his sentence based on Amendment 782. The district court originally found Mejia responsible for conspiring to import 13,000 kilograms of cocaine and sentenced him accordingly. In his motion, Mejia argued the original finding was only 150 kilograms, but the district court denied the motion, reiterating the 13,000 kilogram amount. On appeal, Mejia argues the 13,000 kilogram finding was just a passing comment, not the actual quantity determined. The Court of Appeals must now determine if the district court clearly erred in its drug quantity finding at the original sentencing.

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    of 11

    Case: 15-12172

    Date Filed: 01/29/2016

    Page: 1 of 11

    [DO NOT PUBLISH]

    IN THE UNITED STATES COURT OF APPEALS


    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-12172
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:11-cr-20388-JAL-4

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    versus
    JORGE BARRAGAN MEJIA,
    a.k.a. Jota,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 29, 2016)
    Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.
    PER CURIAM:

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    Page: 2 of 11

    Jorge Barragan Mejia appeals the district courts denial of his motion to
    reduce his sentence. See 18 U.S.C. 3582(c)(2). Mejia moved to reduce his
    sentence based on Amendment 782 to the United States Sentencing Guidelines, a
    retroactive amendment that reduced the base offense levels for drug offenses such
    as the one Mejia committed. The district court denied his motion, concluding that
    Amendment 782 did not lower his amended guideline range based on the amount
    of cocaine (13,000 kilograms) for which Mejia was held responsible at his original
    sentencing. On appeal, Mejia argues that he is eligible for a sentence reduction
    because the district courts original drug-quantity finding was limited to only 150
    kilograms or more of cocaine, and that no facts support the 13,000 kilogram
    quantity. After careful review, we affirm.
    I.
    Mejia pled guilty to conspiring to import cocaine into the United States. See
    21 U.S.C. 959(a)(2) & 963.

    In a factual proffer executed with the plea

    agreement, Mejia admitted that the conspiracy involved the importation of multihundred-kilogram quantities of cocaine from South America into the United States.
    Mejia facilitated the conspiracy by brokering aircrafts that would be used to
    transport drugs from Venezuela to Central America.
    An initial presentence investigation report (PSR) found that Mejia was
    responsible for at least 150 kilograms or more of cocaine, which, under the 2012
    2

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    Page: 3 of 11

    Sentencing Guidelines Manual, yielded a base offense level of 38, the highest base
    offense level applicable to his offense.

    United States Sentencing Guidelines

    Manual (U.S.S.G) 2D1.1(a)(5), (c)(1) (2012). According to paragraph 6 of the


    PSR, Mejia and his codefendants conspired to import approximately 13,000
    kilograms of cocaine over the course of the conspiracy. Among other objections to
    the PSR, Mejia asserted that the 13,000 kilogram amount overstated the quantity
    involved because the amount [was] based on intercepted conversations concerned
    with attempts to find planes for the same drugs, however no deal was reach[ed]
    with a particular plane holder and conversations would continue with other
    individuals to transport the same drugs. An addendum to the PSR reflects that the
    objection remained unresolved.

    The PSR was revised before the sentencing

    hearing, but no material changes were made to paragraph 6.


    At Mejias sentencing hearing, the district court noted that Mejia had filed
    objections to the PSR before its revision, and the court asked whether there were
    any outstanding objections needing resolution. Mejia did not raise the issue of
    drug quantity. Instead, Mejias counsel responded that the only thing pending
    after the revised PSR was a matter of his actual arrest date and . . . whether he
    qualified for safety valve. The court addressed the outstanding objections by
    changing the arrest date and applying the safety-valve reduction. Thereafter, the

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    court adopt[ed] the factual findings and guideline applications as contained in the
    revised advisory presentence investigation report as modified at this hearing.
    As modified by the court, the revised PSR calculated Mejias guideline
    range to be 135 to 168 months of imprisonment. Mejias base offense level was 38
    because the offense involved 150 kilograms or more of cocaine, U.S.S.G.
    2D1.1(c)(1) (2012).

    After a two-level reduction for safety-valve relief, id.

    2D1.1(b)(16) & 5C1.2 (2012), and a three-level reduction for acceptance of


    responsibility, id. 3E1.1 (2012), Mejias total offense level was 33. Mejia was
    assigned zero criminal history points, placing him into criminal-history category I.
    The district court then asked the parties their views on an appropriate
    sentence. The government requested that Mejias sentence be reduced to 108
    months to account for his substantial assistance, pursuant to U.S.S.G. 5K1.1. For
    his part, Mejia requested a downward variance to 81 months of imprisonment.
    The district court addressed the 18 U.S.C. 3553(a) factors and denied
    Mejias request for a downward variance, observing that
    the relevant conduct contained in the revised advisory
    [PSR] revolves around interceptions, surveillance and
    confidential source information regarding the members
    of a drug-trafficking organization which agreed to use
    airplanes to transport narcotics to Central America and
    ultimately to the United States.
    And this Defendant . . . during the course of the
    conspiracy, along with Co-Defendants, aided in the
    purchase and/or lease of aircrafts that were to be used for
    4

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    the transportation of narcotics. During intercepted


    conversations, this Defendant and Co-Defendants
    discussed the use of aircrafts to transport narcotics, the
    cost of aircrafts, the routes from Venezuela to Central
    America and ultimately to the United States.
    The relevant conduct goes on to state that this
    Defendant, along with Co-Defendants, received
    payments from the successful shipments of narcotics
    from Colombia and Venezuela to Central America and
    ultimately to the United States.
    During the course of the conspiracy, from October
    2010 to June 2011, this Defendant and Co-Defendants
    conspired to import to the United States approximately
    13,000 kilograms of cocaine.
    The court further stated, Here, we have a Defendant who is 56 years old, who has
    studied law, who was responsible for 13,000was it 13,000? 13,000 kilograms
    of cocaine in the relevant conduct and who received payments for the
    transportation of the narcotics.

    At no point did Mejia object to the courts

    references to the 13,000 kilogram amount.


    Ultimately, the district court granted the governments motion for a 5K1.1
    sentence departure and imposed a sentence of 108 months of imprisonment. At the
    end of the hearing, the court asked for any objections to its finding of facts or
    conclusions of law or to the manner in which the sentence was imposed. Mejia
    responded that he had no objections.

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    In January 2014, the district court reduced Mejias sentence to 65 months to


    account for substantial assistance Mejia provided to the government in
    investigating and prosecuting others. See Fed. Crim. P. 35(b).
    Later in 2014, the U.S. Sentencing Commission promulgated Amendment
    782, which lowered by two levels the base offense level for most of the offenses
    covered by the drug-quantity table in 2D1.1(c).
    retroactive in November 2014.

    This amendment became

    In March 2015, Mejia moved to reduce his

    sentence based on Amendment 782. The district court appointed the Federal
    Public Defender to represent Mejia.
    The government responded that Mejia was ineligible for a sentence
    reduction because, based on the sentencing courts drug-quantity finding (13,000
    kilograms of cocaine), Amendment 782 did not lower Mejias base offense level or
    his amended guideline range. Mejia replied, through counsel, that the sentencing
    court found only that he was responsible for at least 150 kilograms of cocaine, and
    that the courts statements that he was responsible for 13,000 kilograms of cocaine
    were passing comments not made in the context of determining the precise drug
    quantity attributable to him. Mejia also argued that the government did not submit
    evidence that linked him to 13,000 kilograms of cocaine.
    The district court denied Mejias 3582(c)(2) motion, finding that there is
    no change to the advisory guideline range based upon the application of the
    6

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    Page: 7 of 11

    revised, retroactive guideline and the quantity of drugs for which the Defendant
    was held accountable at sentencing: 13,000 kilograms of cocaine.
    II.
    We review de novo the district courts legal conclusions regarding the scope
    of its authority under 3582(c)(2), and we review the factual findings underlying
    those legal conclusions for clear error. United States v. Davis, 587 F.3d 1300,
    1303 (11th Cir. 2009).
    A district court may modify a defendants term of imprisonment if the
    defendant was sentenced based on a sentencing range that has subsequently been
    lowered by the Sentencing Commission. 18 U.S.C. 3582(c)(2). Any reduction
    must be consistent with the Sentencing Commissions policy statements. Id. A
    reduction is not consistent with the policy statement governing sentence reductions
    if the amendment does not have the effect of lowering the defendants applicable
    guideline range. U.S.S.G. 1B1.10(a)(2)(B). The applicable guideline range is
    the range determined before consideration of any departure provision in the
    Guidelines Manual or any variance. Id. 1B1.10, cmt. n.1(A). A 3582(c)(2)
    proceeding does not constitute a de novo resentencing, and all original sentencing
    determinations remain unchanged with the sole exception of the guideline range
    that has been amended since the original sentencing. United States v. Bravo, 203
    F.3d 778, 781 (11th Cir. 2000).
    7

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    Mejia argues that the district court clearly erred in finding that he had been
    held responsible for 13,000 kilograms of cocaine at his original sentencing. He
    contends that the courts original drug-quantity finding was limited to 150
    kilograms of more of cocaine, which corresponds to base offense level 36 under
    Amendment 782. There is no dispute that 13,000 kilograms of cocaine would
    make Mejia ineligible for a sentence reduction because, after substituting
    Amendment 782 into his guideline calculations, Mejias base offense level would
    remain at 38, and his amended guideline range would stay the same. See U.S.S.G.
    2D1.1(c)(1) (2014) (base offense level 38 corresponds to 450 kilograms or more
    of cocaine).
    The district court did not clearly err in finding that the amount of cocaine for
    which it had held Mejia responsible rendered him ineligible for 3582(c)(2) relief.
    At the original sentencing hearing, the district court explicitly adopted the factual
    findings of the revised PSR, which included the 13,000 kilogram figure. The court
    then twice expressly stated that Mejia was responsible for 13,000 kilograms of
    cocaine as relevant conduct, relying on that finding as a reason to deny Mejias
    request for a downward variance. We disagree that these statements were mere
    passing comments or something other than a factual finding. And based on these
    statements, the district court permissibly concluded that its original drug-quantity
    finding was 13,000 kilograms of cocaine. See United States v. Hamilton, 715 F.3d
    8

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    Page: 9 of 11

    328, 339-40 (11th Cir. 2013) (courts addressing 3582(c)(2) eligibility should
    determine what drug-quantity findings were made, explicitly or implicitly, at
    original sentencing hearing).
    Further, the district court was permitted to rely on the 13,000 kilogram
    figure from the PSR because it was effectively undisputed and it was adopted by
    the sentencing court. In a 3582(c)(2) proceeding, a court may base factual
    findings on statements in the PSR that were not objected to by the defendant and
    were adopted by the sentencing court. See Davis, 587 F.3d at 1303-04 (holding
    that the original sentencing courts adoption of the PSRs factual finding that the
    offense involved at least 8 kilograms of crack cocaine rendered the defendant
    ineligible for relief under Amendment 706, even though the sentencing court
    originally had not specified an exact quantity in excess of 1.5 kilograms of crack
    cocaine). Facts contained in a [PSR] are undisputed and deemed to have been
    admitted unless a party objects to them before the sentencing court with specificity
    and clarity. United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (11th
    Cir. 2009) (internal quotation marks omitted).
    Although Mejia initially objected to paragraph 6 of the PSR, from which the
    13,000 kilogram amount was derived, he did not raise that issue clearly and
    specifically at the sentencing hearing. See id.; Davis, 587 F.3d at 1303-04. In fact,
    Mejia affirmatively represented to the court at the beginning of the hearing that the
    9

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    Page: 10 of 11

    only remaining objections were to issues other than drug quantity. The sentencing
    court explicitly adopted the factual statements of the PSR, including that the
    conspiracy involved 13,000 kilograms of cocaine. Then, Mejia failed to object
    when the court cited that figure as part of its explanation for denying Mejias
    request for a downward variance, nor did he raise the issue at the end of the
    hearing when asked by the court for any other objections. By failing to raise the
    issue to the sentencing court with clarity and specificity, and implicitly
    representing that drug quantity was no longer in dispute, Mejia is deemed to have
    admitted the PSRs statements that the conspiracy involved 13,000 kilograms of
    cocaine. See Beckles, 565 F.3d at 844. In light of that admission, the government
    did not need to present evidence to substantiate the drug quantity.
    Because the original sentencing court explicitly stated that Mejia was
    responsible for 13,000 kilograms of cocaine at his original sentencing, based on a
    statement in the PSR that Mejia is deemed to have admitted, the district court, in
    denying his 3582(c)(2) motion, did not clearly err in finding that Mejia originally
    was held accountable for 13,000 kilograms of cocaine. See Davis, 587 F.3d at
    1303-04; see also Hamilton, 715 F.3d at 340-41. As a result, the court properly
    found that Mejia was not eligible for 3582(c)(2) relief because Amendment 782
    did not have the effect of lowering his base offense level or his amended guideline
    range. See U.S.S.G. 1B1.10(a)(2)(B). The district court did not need to consider
    10

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    the 3553(a) sentencing factors because a court is without discretion to reduce a


    sentence if a defendant is not eligible for a reduction. See United States v. Webb,
    565 F.3d 789, 793 (11th Cir. 2009) (Given that his sentencing range did not
    change, the district court correctly recognized that it had no authority under
    3582(c)(2) to reduce his sentence and that it did not need to examine the 18
    U.S.C. 3553(a) factors.). Accordingly, we affirm the district courts denial of
    Mejias 3582(c)(2) motion.
    AFFIRMED.

    11

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