Argued: September 2, 2016
from the United States District Court for the Southern
District of New York. No. 1:03-cr-1104-2 ― John G.
from a final order of the United States District Court for
the Southern District of New York (Koeltl, J.),
denying Ramirez's motion for a reduction in sentence
under 18 U.S.C. § 3582(c)(2). Ramirez argues that the
district court's denial violated the Ex Post
Facto Clause. We AFFIRM.
Konanova (Sanford I. Weisburst, on the brief), Quinn Emanuel
Urquhart & Sullivan, LLP, New York, New York, for
Defendant- Appellant Ferney Dario Ramirez.
Houle, Assistant United States Attorney (Margaret Garnett,
Assistant United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the Southern District of
New York, New York, New York, for Appellee.
Before: Raggi, Chin, and Droney, Circuit Judges.
Droney, Circuit Judge
2004, Defendant-Appellant Ferney Dario Ramirez pleaded guilty
to one count of conspiracy to distribute five kilograms or
more of cocaine, in violation of 21 U.S.C. §§ 846
and 841(a)(1), (b)(1)(A). The district court calculated
Ramirez's Guidelines range as 360 months' to life
imprisonment, and sentenced Ramirez to a term of 210
months' imprisonment. In 2015, Ramirez moved for a
reduction in sentence pursuant to 18 U.S.C. §
3582(c)(2), arguing that Amendments 782 and 788 of the
Sentencing Guidelines lowered his applicable Guidelines
range. The district court acknowledged that Amendment 782
reduced Ramirez's Guidelines range to 324 to 405
months' imprisonment but denied the motion because a 2011
Amendment to U.S.S.G. § 1B1.10(b) prohibited a sentence
reduction where the defendant's initial sentence was
below the minimum of the amended Guidelines range. On appeal,
Ramirez argues that application of § 1B1.10(b) to
prohibit a sentence reduction violates the Ex Post
Facto Clause of the United States Constitution. We
affirm the district court's order.
September 16, 2003, Ramirez was charged in a one-count
indictment with conspiracy to possess with intent to
distribute five kilograms or more of cocaine. On May 6, 2004,
Ramirez pleaded guilty pursuant to a plea agreement that
stipulated to a Guidelines range of 151 to 188 months'
imprisonment. Prior to sentencing, however, Ramirez made a
motion to withdraw from his plea agreement in light of
United States v. Booker, 543 U.S. 220 (2005), so
that he could argue for a sentence below the range stipulated
in the plea agreement. The district court granted the motion and
held a Fatico hearing on March 30, 2006, to resolve
factual disputes between the parties regarding, inter
alia, the amount of drugs involved and Ramirez's
acceptance of responsibility, ultimately concluding that more
than 150 kilograms of cocaine were involved in the offense
and that Ramirez was not entitled to credit for acceptance of
district court proceeded to sentencing on May 25, 2006.
Pursuant to U.S.S.G. § 2D1.1(c)(1), the district court
calculated a base offense level of 38 based on the quantity
of drugs involved in the offense. The district court applied
a two-level enhancement under U.S.S.G. § 3B1.1 because
Ramirez was an organizer, leader, or supervisor of the
criminal activity, and another two-level enhancement under
U.S.S.G. § 3C1.1 because Ramirez attempted to obstruct
justice by influencing a witness. After refusing to grant
various downward departures sought by Ramirez, the court
calculated his adjusted offense level as 42. Given
Ramirez's criminal history category of II, the district
court determined that the applicable Guidelines range was 360
months' to life imprisonment.
district court noted that the situation was "highly
unusual" because the parties had initially stipulated to
a 151-to-188- month Guidelines range before Ramirez withdrew
from the plea agreement. Joint App'x at 74-75. The court
also acknowledged that, despite his withdrawal from the plea
agreement, Ramirez's guilty plea "did in fact save
the government and the public substantial resources."
Id. at 75. After considering the 18 U.S.C. §
3553(a) factors, the district court imposed a
below-Guidelines sentence of 210 months' imprisonment,
followed by five years of supervised release.
subsequently appealed his conviction and sentence, arguing
that the district court erred in granting his motion to
withdraw from the plea agreement and that his counsel was
ineffective for advising him to withdraw. We affirmed the
district court's judgment and dismissed Ramirez's
ineffective-assistance claim without prejudice. See
United States v. Ramirez, 267 F.App'x 11, 11, 13 (2d
Cir. 2008) (summary order). On May 6, 2011, the district
court denied Ramirez's motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. See
Ramirez v. United States, No. 09- cv-4397 (S.D.N.Y. May
6, 2011), ECF No. 9. We denied a Certificate of Appealability
and dismissed Ramirez's subsequent appeal. Ramirez v.
United States, No. 11-2843 (2d Cir. Feb. 22, 2012), ECF
Subsequent Changes in the Sentencing Guidelines
the 2002 Sentencing Guidelines in effect at the time of
Ramirez's offense, as well as the 2005 Guidelines in
effect when Ramirez was sentenced, district courts could
generally reduce sentences in sentence-modification
proceedings even where the initial sentence was below the
low-end of the amended Guidelines range:
In determining whether, and to what extent, a reduction in
the term of imprisonment is warranted for a defendant
eligible for consideration under 18 U.S.C. § 3582(c)(2),
the court should consider the term of imprisonment that it
would have imposed had the amendment(s) to the guidelines
listed in subsection (c) been in effect at the time the
defendant was sentenced, except that in no event may the
reduced term of imprisonment be less than the term of
imprisonment the defendant has already served.
U.S.S.G. § 1B1.10(b) (2002 ed.); accord id.
§ 1B1.10(b) (2005 ed.). In addition, the Application
Notes to that section confirmed that "the sentencing
court has the discretion to determine whether, and to what
extent, to reduce a term of imprisonment under this
section." Id. § 1B1.10(b) cmt. n.3 (2002
ed.); id. § 1B1.10(b) cmt. n.3 (2005 ed.).
2011, the Sentencing Commission adopted Amendment 759. That
amendment prohibited district courts from imposing a reduced
sentence that is below the minimum of the amended Guidelines
range, unless the Government originally moved for a
below-Guidelines sentence due to the defendant's
substantial assistance to the authorities under U.S.S.G.
(A) Limitation.-Except as provided in subdivision
(B), the court shall not reduce the defendant's term of
imprisonment under 18 U.S.C. § 3582(c)(2) and this
policy statement to a term that is less than the minimum of
the amended guideline range determined under subdivision (1)
of this subsection.
(B) Exception for Substantial Assistance.-If the
term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to
the defendant at the time of sentencing pursuant to a
government motion to reflect the defendant's substantial
assistance to authorities, a reduction comparably less than
the amended ...