APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José A. Fusté , U.S. District Judge.
Patricia A. Garrity, Research and Writing Specialist, Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Supervisory Assistant Federal Public Defender, on brief for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, Susan Z. Jorgensen, Assistant United States Attorney, and Rosa Emilia Rodriguez-Velez, United States Attorney, on brief for appellee.
Before Howard, Chief Judge, Stahl and Kayatta, Circuit Judges.
STAHL, Circuit Judge.
Following an amendment to the United States Sentencing Guidelines, Defendant-Appellant Emmanuel Zayas-Ortiz filed a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c). The motion was opposed by the United States and the probation officer. The district court denied the motion with a short form order. The defendant now appeals. We affirm.
I. Facts & Background
On December 12, 2005, Emmanuel Zayas-Ortiz (" Zayas" ) was charged, along
with sixty-five co-defendants, with knowingly and intentionally conspiring, combining, confederating, and agreeing to possess, with intent to distribute, controlled narcotics; specifically, five kilograms or more of cocaine, fifty grams or more of cocaine base, and one kilogram or more of heroin. Zayas eventually entered into a plea agreement with the United States, which stipulated, inter alia, that Zayas was one of the drug trafficking operation's leaders, that Zayas was an " enforcer" and owned " drug points" where the illicit products were sold, and that Zayas possessed a firearm in the course of the offense.
Consistent with this agreement, the parties recommended the following sentencing calculations under the United States Sentencing Guidelines Manual (" U.S.S.G." or " the guidelines" ): Zayas would receive a base offense level of thirty-eight for violations of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 846. Pursuant to U.S.S.G. § 3B1.1, Zayas would receive a two-level enhancement for his leadership role in the conspiracy, and, pursuant to U.S.S.G. § 2D1.1, he would receive another two-level enhancement for the use of firearms within the conspiracy. These increases would be partially offset by a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a total adjusted offense level of thirty-nine and yielding an imprisonment range of 262 to 327 months. The parties agreed to recommend a term of imprisonment of 264 months. The probation officer prepared a Pre-Sentence Report (" PSR" ) with calculations mirroring those found in the plea agreement.
On January 17, 2007, the district court sentenced Zayas at the bottom of the guidelines range to a term of imprisonment of 262 months and a supervised release term of five years. That judgment was appealed and subsequently affirmed by this Court.
This recitation is merely background for purposes of the instant appeal. On March 9, 2009, Zayas filed his first motion to reduce his sentence under 18 U.S.C. § 3582(c), pursuant to amendments 706 and 711 to the guidelines. The government stipulated to the reduction, which resulted in a two-point offense level decrease, an adjusted offense level of thirty-seven, and an amended sentencing range of 210 to 262 months. The district court granted ...