19-2202-cr
United States v. Echeverry

                           In the
               United States Court of Appeals
                       FOR THE SECOND CIRCUIT



                             AUGUST TERM 2020
                              No. 19-2202-cr

                        UNITED STATES OF AMERICA,
                                 Appellee,

                                      v.

                             CARLOS ECHEVERRY,
                             Defendant-Appellant.



            On Appeal from the United States District Court
                for the Southern District of New York



                        SUBMITTED: OCTOBER 14, 2020
                         DECIDED: OCTOBER 28. 2020



Before:        WALKER AND MENASHI, Circuit Judges. *

       In this appeal, Carlos Echeverry challenges a decision of the
United States District Court for the Southern District of New York


* Senior Circuit Judge Ralph K. Winter, originally a member of the panel, is
currently unavailable, and the appeal is being adjudicated by the two
available members of the panel, who are in agreement. See 2d Cir. IOP E(b).
(Woods, J.) denying relief under the First Step Act. Echeverry argues
that, because he pleaded guilty to an offense—conspiracy to
distribute, and to possess with intent to distribute, crack cocaine—the
penalties for which were altered by the Fair Sentencing Act, the
district court had the authority to reduce his sentence. We disagree.
Under the First Step Act, a district court has the authority to lower a
sentence only if that sentence could have been lower had the Fair
Sentencing Act applied. Here, Echeverry pleaded guilty to an
information that charged, in its first count, that Echeverry committed
three offenses—distributing, and possessing with intent to distribute,
crack cocaine, cocaine, and heroin. Because the Fair Sentencing Act
did not alter the mandatory minimum sentences triggered by the
quantities of heroin and cocaine charged in count one of the
information, Echeverry’s sentence could not have been lower than 120
months. Because the district court lacked authority to reduce
Echeverry’s sentence, we AFFIRM.



                         Carlos Echeverry, White Deer, PA, pro se.

                         Michael McGinnis and Anna M. Skotko,
                         Assistant United States Attorneys, for
                         Audrey Strauss, Acting United States
                         Attorney for the Southern District of New
                         York, New York, NY.



PER CURIAM:

      Appellant Carlos Echeverry challenges a decision of the U.S.
District Court for the Southern District of New York (Woods, J.)


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denying Echeverry’s motion to reduce his sentence of 120 months’
imprisonment under the First Step Act. Under the Act, a defendant
may move a district court to reduce his sentence if his sentence would
have been lower had the Fair Sentencing Act been in effect. As
relevant here, the Fair Sentencing Act increased the quantity of crack
cocaine required to trigger a mandatory minimum sentence under
21 U.S.C. § 841. Echeverry argues that, because he was charged with
and pleaded guilty to an offense involving the distribution of crack
cocaine, the district court erred when it concluded that this conviction
for two other offenses—both of which had a mandatory minimum
sentence of 120 months—precluded First Step Act relief. We conclude
the district court was correct and affirm.

                                    I

      “On September 27, 2004, Echeverry handed a jacket containing
315 grams of heroin to an undercover detective and discussed
payment terms with that detective.” Echeverry v. United States, No. 04-
CR-1162, 

2013 WL 5548801

, at *1 (S.D.N.Y. Oct. 8, 2013). After his
arrest, a grand jury issued an indictment that charged the
distribution, and possession with intent to distribute, of 315 grams of
heroin. In response, Echeverry attended a series of proffer sessions in
which he disclosed his extensive background in drug trafficking and
his involvement in an attempt to collect a drug debt that resulted in
the discharge of a firearm. Entering into a cooperation agreement,
Echeverry waived indictment and, in 2005, he pleaded guilty to a two-
count information. Count one charged Echeverry “with conspiring to
distribute, and to possess with the intent to distribute, (a) five or more
kilograms of cocaine, (b) one or more kilograms of heroin, and (c) 50
or more grams of cocaine base.”

Id. Count two charged

Echeverry
“with aiding and abetting the use, carrying, and discharge of a
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firearm during and in relation to a drug-trafficking offense.”

Id. After the plea

hearing, Echeverry was released on bail so that he could
continue his cooperation with the government.

      In 2007, Echeverry was arrested for the possession and sale of a
controlled substance in the State of New York. In 2010, the district
court sentenced Echeverry to a term of 240 months’ imprisonment—
120 months for each count of the information—and a term of five
years’ supervised release. This court affirmed. See United States v.
Echeverry, 

649 F.3d 159

(2d Cir. 2011). On November 14, 2012,
Echeverry filed a motion under 28 U.S.C. § 2255, which permits “[a]
prisoner in custody under sentence of a court established by Act of
Congress” to “move the court which imposed the sentence to vacate,
set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The district
court denied § 2255 relief and this court dismissed Echeverry’s appeal
as untimely.

      In 2019, Echeverry, proceeding pro se, filed a motion requesting
the reduction of his sentence under the First Step Act. In an order
dated July 2, 2019, the district court denied relief on the ground that,
“[b]ecause Mr. Echeverry pleaded guilty to conspiracy to distribute
cocaine and heroin in quantities that required the imposition of a 10
year mandatory minimum sentence,” Echeverry’s sentence could not
have been lower if the Fair Sentencing Act had been in effect.
Echeverry timely appealed.

                                   II

      In 2010, “President Obama signed into law the Fair Sentencing
Act of 2010.” United States v. Johnson, 

961 F.3d 181

, 183 (2d Cir. 2020).
The Fair Sentencing Act “increased from 50 to 280 grams the amount
of crack cocaine necessary to trigger” the mandatory minimum

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provided by 21 U.S.C. § 841.

Id. But the Fair

Sentencing Act did not
apply to sentences imposed before its enactment. In 2018, President
Trump signed into law the First Step Act. In relevant part, the First
Step Act provides that “[a] court that imposed a sentence for a
covered offense may, on motion of the defendant ... impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in
effect at the time the covered offense was committed.” First Step Act
of 2018 § 404, Pub. L. No. 115-391, 132 Stat. 5194, 5222. The statute
defines the term “covered offense” to mean “a violation of a Federal
criminal statute, the statutory penalties for which were modified by
section 2 or 3 of the Fair Sentencing Act ... that was committed before
August 3, 2010.”

Id. Echeverry’s position is

that, because he was
charged with the possession and distribution of crack cocaine, the
penalties for which were altered by the Fair Sentencing Act, the
district court had the power to reduce his sentence.

      The First Step Act permits a district court to reduce a sentence
only to the extent that the sentence could have been lower “if sections
2 and 3 of the Fair Sentencing Act … were in effect at the time the
covered offense was committed.” Because count one of the
superseding information charged two non-crack-cocaine offenses that
each carried a mandatory minimum sentence of 120 months’
imprisonment, Echeverry is ineligible for First Step Act relief. See
United States v. Jones, 

962 F.3d 1290

, 1303 (11th Cir. 2020) (“If the
movant’s sentence would have necessarily remained the same had the
Fair Sentencing Act been in effect, then the district court lacks the
authority to reduce the movant’s sentence.”).

      Count one of the superseding information charged three
controlled substance offenses, each of which constituted a violation of


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21 U.S.C. § 841. That statute provides that “it shall be unlawful for any
person knowingly or intentionally to manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Section 841
sets out mandatory minimums that are triggered when the
defendant’s violation of § 841(a)(1) involves specified quantities of
controlled substances. As relevant here, the statute provides that a
defendant whose “violation of subsection (a)” involves “1 kilogram
or more of a mixture or substance containing a detectable amount of
heroin” shall “be sentenced to a term of imprisonment which may not
be less than 10 years or more than life.” 21 U.S.C. § 841(b)(1)(A)(i).
Similarly, a defendant whose crime involves “5 kilograms or more of
a mixture or substance containing a detectable amount of ... cocaine”
shall also be sentenced to a minimum mandatory term of 10 years
imprisonment. 21 U.S.C. § 841(b)(1)(A)(ii)(II). Because count one
charged a conspiracy to distribute and possess with intent to
distribute “five or more kilograms of cocaine” and “one or more
kilograms of heroin,” count one carried a mandatory minimum of 120
months imprisonment even without the inclusion of Echeverry’s
crack-cocaine offense. Because Echeverry’s sentence could not have
been lower even if “sections 2 and 3 of the Fair Sentencing Act … were
in effect at the time the covered offense was committed,” the district
court correctly concluded that it lacked the authority to reduce
Echeverry’s sentence.

       For the foregoing reasons, we AFFIRM the judgment of the
district court.




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