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United States v. Agron

United States District Court, D. Massachusetts

May 31, 2016

UNITED STATES of AMERICA,
v.
JULIO AGRON, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT’S MOTIONS TO REDUCE AND CORRECT SENTENCE

          F. Dennis Saylor IV Judge

         In 2008, Julio Agron was convicted of conspiracy to distribute cocaine and possession of cocaine with intent to distribute. He was acquitted of possession of a firearm in furtherance of a drug-trafficking offense. The Court sentenced him to a 168-month term of imprisonment, a downward variance from the applicable guideline sentencing range of 210 to 262 months.

         Pursuant to 18 U.S.C. § 3582(c)(2), Agron has now moved to reduce his sentence based on a guideline sentencing range that has subsequently been lowered and made retroactive by the United States Sentencing Commission. He has also moved to have his sentence corrected pursuant to Fed. R. Crim. P. 36, contending that because a jury acquitted him of the firearm charge, the Court erred in applying the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection with a drug offense.

         For the reasons set forth below, the motions to reduce and correct his sentence will be denied.

         I. Background

         A. Factual and Procedural Background

         On November 13, 2006, the government filed a criminal complaint charging Agron and two co-defendants with violations of 21 U.S.C. §§ 841 and 846. On November 29, 2006, Agron was indicted for (1) conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, (2) possession of more than five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a), and (3) possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c). On April 30, 2008, a jury returned a verdict of guilty on the two drug charges and not guilty on the firearm charge.

         On July 28, 2008, Agron filed a notice of appeal. The only argument he raised on appeal was this Court’s denial of his motion to suppress the DEA audio recording that captured the controlled cocaine transaction in a Leominster, Massachusetts motel room. On January 29, 2010, the First Circuit affirmed the conviction. See United States v. Larios, 593 F.3d 82 (1st Cir. 2010). On May 25, 2010, Agron filed a petition for a writ of certiorari with the Supreme Court, which was denied on June 28, 2010. On February 18, 2011, Agron filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, contending that his right to a speedy trial was violated by the Court’s exclusion of time. The Court denied his § 2255 petition on June 19, 2012.

         On December 4, 2014, Agron filed a letter with the Court indicating his intent to file a motion to modify his sentence under 18 U.S.C. § 3582(c)(2) and Amendment 782 to the United States Sentencing Guidelines. On February 26, 2015, the Court appointed counsel for Agron to represent him in pursuing the sentence reduction. On March 4, 2015, Agron filed a pro se motion to modify his sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. Amendment 782. With that motion, Agron submitted documents demonstrating the educational and occupational progress that he has made during his incarceration, as well as a letter to the Court. On August 15, 2015, the government filed a status report, contending that Agron was “ineligible for a reduction in his sentence because he previously received a sentence at the bottom of [his] now-amended [guideline sentencing range].” (Docket No. 210 at 2). After Agron was granted three motions for extensions of time, his counsel filed a status report on October 16, 2015, contending that he was eligible for a reduction pursuant to § 3582(c)(2) and Amendment 782.

         On November 3, 2015, Agron filed a pro se motion to correct his sentence pursuant to Fed. R. Crim. P. 36, contending that the Court erred in applying a two-level enhancement for possession of a firearm in connection with the drug offenses under U.S.S.G. § 2D1.1(b)(1) because he was acquitted by a jury of the charged firearm offense.

         B. Agron’s Sentencing Hearing

         Agron was sentenced on July 23, 2008. The Court began the hearing by addressing the parties’ objections to the pre-sentence report. Agron raised only one substantive objection, arguing essentially that because the jury acquitted him of possessing a firearm in furtherance of a drug-trafficking offense under 18 U.S.C. § 924(c), the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection with a drug offense was not applicable.

         After hearing argument from the parties, the Court concluded that the enhancement was proper based on the preponderance of the evidence introduced during Agron’s trial. The evidence at trial demonstrated that Agron, after carrying a duffel bag holding seven kilograms of cocaine into a motel room where undercover DEA agents had arranged a controlled buy with his two co-defendants, returned to the parking lot to act as a lookout. Larios, 593 F.3d at 86. While acting as a lookout, Agron was arrested in the motel parking lot, and a search incident to his arrest uncovered a loaded nine-millimeter handgun in the waistband of his pants. Id. Citing Application Note 3 to U.S.S.G. § 2D1.1, the Court stated that the enhancement should be applied if, by a preponderance of the evidence, a firearm was “present” during the underlying offense, unless it was “clearly improbable” that the weapon was connected with the drug crimes.[1] In contrast, the Court noted, for the jury to convict Agron under 18 U.S.C. § 924(c), it had to conclude beyond a reasonable doubt that Agron used or carried the firearm in furtherance of the drug offense.[2]

         After addressing Agron’s objection to the two-level enhancement under § 2D1.1(b)(1), the Court turned to the guideline calculation:

The base offense level is 32, based on seven-plus kilograms of cocaine, with specific offense characteristics of the two-level enhancement that we just discussed for a final adjusted offense level of 34. His criminal history score is seven. His criminal history category is roman numeral IV. That produces a guideline range of 210 to 262 months . . . . Is there any correction or addition to the guideline calculation not already [raised]?

(Docket No. 174 at 9). Neither the government nor Agron objected to the guideline calculation.

(Id.).

         After stating the applicable guideline range but before hearing argument, the Court raised an issue that had not ...


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