United States v. Vargas, 060920 FED2, 19-463-cr

Docket Nº:19-463-cr
Opinion Judge:GERARD E. LYNCH, CIRCUIT JUDGE
Party Name:United States of America, Appellee, v. Marilyn Vargas, Defendant-Appellant.
Attorney:BRENDAN WHITE, White & White, New York, NY (Mitchell C. Elman, Law Offices of Mitchell C. Elman, P.C., Garden City, NY, on the brief), for Defendant-Appellant Marilyn Vargas. ROBERT B. SOBELMAN, Assistant United States Attorney (Andrew Chan, Daniel B. Tehrani, Assistant United States Attorneys, o...
Judge Panel:Before: Lynch and Chin, Circuit Judges, and Engelmayer, District Judge.
Case Date:June 09, 2020
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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United States of America, Appellee,

v.

Marilyn Vargas, Defendant-Appellant.

No. 19-463-cr

United States Court of Appeals, Second Circuit

June 9, 2020

Argued: March 13, 2020

BRENDAN WHITE, White & White, New York, NY (Mitchell C. Elman, Law Offices of Mitchell C. Elman, P.C., Garden City, NY, on the brief), for Defendant-Appellant Marilyn Vargas.

ROBERT B. SOBELMAN, Assistant United States Attorney (Andrew Chan, Daniel B. Tehrani, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

Before: Lynch and Chin, Circuit Judges, and Engelmayer, District Judge. [*]

Marilyn Vargas appeals from her sentence imposed following her plea of guilty to the charge of conspiracy to distribute narcotics. She argues first, that the sentence was procedurally unreasonable because the district court erred in denying the government's motion for a one-level reduction in her offense level for timely accepting responsibility under U.S.S.G. § 3E1.1(b) and second, that the sentence imposed was substantively unreasonable. Because we agree that the district court committed a procedural error, we REMAND for vacatur of the judgment and resentencing, without reaching the substantive reasonableness of the sentence.

GERARD E. LYNCH, CIRCUIT JUDGE

Defendant-appellant Marilyn Vargas appeals from a judgment entered in the United States District Court for the Southern District of New York (Valerie E. Caproni, J.), following her plea of guilty to a charge of conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846. The district court sentenced Vargas to 90 months' imprisonment. Vargas argues principally that the district court erred by denying the government's motion for a one-level reduction in her offense level for timely accepting responsibility under U.S.S.G. § 3E1.1(b). Because we agree that the district court erred in this way, we REMAND the matter with instructions to the district court to vacate the judgment and resentence the defendant. We do not reach Vargas's additional argument that her sentence was substantively unreasonable.

BACKGROUND

On November 30, 2017, Vargas was arrested for her role in a drug trafficking organization that transported cocaine into the United States. Prior to her arrest, Drug Enforcement Administration ("DEA") agents observed Vargas drive into the parking lot of a restaurant. Shortly thereafter, another vehicle pulled up next to Vargas's car; a co-conspirator got out of that vehicle and walked over to Vargas's. After speaking with Vargas for a few minutes, the co-conspirator placed a box in the trunk of her car. At that point, DEA agents approached and obtained Vargas's consent to search the trunk. Inside the box in the trunk, the agents found 20 brick-shaped packages containing a white powdery substance later determined to be cocaine.

On March 5, 2018, a grand jury indicted Vargas on a single count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). On April 30, 2018, Vargas moved to suppress the evidence obtained from her car. On August 21 and 22, 2018, the district court held an evidentiary hearing on the motion, during which the court heard testimony from two DEA agents who surveilled and searched Vargas's car on the day of her arrest. At the conclusion of the hearing, the district court denied Vargas's motion and scheduled a trial to begin on September 26, 2018.

On September 5, 2018, Vargas pled guilty to the indictment pursuant to a plea agreement with the government (the "Plea Agreement"). In the Plea Agreement, the parties stipulated to the following calculation of the recommended sentencing range under the United States Sentencing Guidelines (the "Guidelines"): Under U.S.S.G. § 2D1.1(a)(5) and (c)(4), Vargas's base offense level was 32; a two-level reduction was warranted because she met the safety valve criteria set forth in § 5C1.2(a); and another three-level reduction was applied pursuant to § 3E1.1 because she (a) accepted responsibility and (b) did so in a timely manner, saving the government substantial resources in preparing for trial. The resulting total offense level of 27, combined with Vargas's criminal history category of I, yielded a guideline range of 70 to 87 months' imprisonment. The Probation Office's guideline calculation in the Presentence Investigation Report mirrored that in the Plea Agreement. Nevertheless, the Probation Office recommended a below-guideline sentence of 60 months' imprisonment.

At sentencing, the district court's calculation differed in one important respect: the court concluded that Vargas was eligible only for a two-level, rather than a three-level, reduction in her offense level for acceptance of responsibility under § 3E1.1. The court denied the government's motion for the additional one-level reduction under § 3E1.1(b) because Vargas pled guilty only "after a lengthy suppression hearing had been held that required a substantial amount of work on the government's part," App'x 70, and, therefore, her plea did not allow the government to avoid the preparation required for trial. Based on a total offense level of 28, and a criminal history category of I, the district court determined that the Guidelines recommended a sentence of imprisonment for a term between 78 and 97 months. The district court proceeded to sentence Vargas to 90 months' imprisonment and three years of supervised release.

DISCUSSION

We review a district court's sentencing decision for procedural and substantive reasonableness, using a "deferential abuse-of-discretion standard." See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal citation omitted). "[A] sentence is procedurally unreasonable if a district court committed an error of law in the course of exercising discretion, [or] erred in determining the applicable Guideline range or availability of departure authority." United States v. Johnson, 567 F.3d 40, 51-52 (2d Cir. 2009) (internal quotation marks omitted) (emphasis omitted).

"The abuse-of-discretion standard incorporates de novo review of questions of law (including interpretations of the Guidelines) and clear-error review of questions of fact." United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008). "When a party properly objects to a sentencing error in the district court, we review for harmless error; issues not raised in the trial court because of oversight, including sentencing issues, are normally deemed forfeited on appeal unless they meet our standard for plain error." United States v. Llanos, 262 Fed.Appx. 336, 336 (2d Cir. 2008).

Vargas contends first that the district court erred as a matter of law in denying the government's motion to accord her an additional one-level downward adjustment for timely acceptance of responsibility under U.S.S.G. § 3E1.1(b), and second, that her 90-month sentence was substantively unreasonable. Because we agree with her first argument, we do not reach her second.

Vargas raises two distinct challenges to the district court's refusal to award the additional third "point" for acceptance of responsibility based on a resource-saving timely guilty plea. First, she contends that, once the district court has granted a two-level reduction under § 3E1.1(a), and the government has moved for the additional one-level reduction under § 3E1.1(b), the court has no power to deny the motion; it is required to reduce the defendant's offense level by one. Second, Vargas contends that, assuming that the district court had the power to deny the motion, it nevertheless erred in denying the motion in this case. We reject Vargas's first contention, but agree with her second.

I.

A District Court Has the Power to Deny a Government Motion Under § 3E1.1(b).

Section 3E1.1 of the Guidelines provides, in two subsections, for reduction of a defendant's offense level by up to three levels for acceptance of responsibility. U.S.S.G. § 3E1.1. Subsection (a) provides that "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense," the court shall "decrease the offense level by 2 levels." Id. § 3E1.1(a). Subsection (b), which is at issue here, provides for a further one-level decrease if (1) the defendant qualifies for a reduction under subsection (a); (2) the defendant's offense level prior to the application of subsection (a) is level 16 or higher; and (3) "upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently[.]" Id. § 3E1.1(b).

Vargas at times appears to argue that the district court has no discretion to deny a government motion. That is indeed how some courts have characterized the issue. See, e.g., United States v. Mount, 675 F.3d 1052, 1055 (7th Cir. 2012) ("The question is whether, in cases where [the first two criteria under § 3E1.1(b) are met and the government has moved the court to award the third point reduction], the additional one-level downward adjustment remains discretionary with the court, or if-strictly as a matter of properly computing the advisory guideline range-it is mandatory."). We respectfully believe that this formulation misconceives the issue. There is no question that where all three conditions in subsection (b) are satisfied, the application of the additional one-level decrease is mandatory, not discretionary. See United States v. Rood, 281 F.3d 353, 357 (2d Cir...

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