United States v. Saulo Salinas-Ospina , 622 F. App'x 577 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 4, 2015*
Decided December 7, 2015
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15-2564
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 CR 601-1
SAULO SALINAS-OSPINA,
Defendant-Appellant. Rebecca R. Pallmeyer,
Judge.
ORDER
Saulo Salinas-Ospina sought to reduce his 168-month prison sentence based on
Amendment 782 to the federal sentencing guidelines, which retroactively reduced the
guideline range for his crime. The district court denied the motion, reasoning that it did
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-2564 Page 2
not have the authority to reduce his sentence because it was already at the low end of the
new range. Its analysis is correct, so we affirm the judgment.
When Salinas-Ospina was sentenced in 2009, he received a term of imprisonment
below the then-current guideline range. He pleaded guilty to conspiracy to importing
five kilograms of heroin to the United States. See 21 U.S.C. §§ 952, 963. The district court
calculated a base offense level of 34, which included a 3-point increase for
Salinas-Ospina’s supervisory role and a 3-point decrease for acceptance of responsibility.
Coupled with his category IV criminal history, this offense level yielded a guidelines
imprisonment range of 210 to 262 months. The district court imposed a sentence of 168
months—42 months below the low-end of that range—for two reasons: His age (he was
71 years old at the time of the sentencing), and his declining health (he has been
diagnosed with several health issues including chronic hypertension, hypothyroidism,
gout, and arthritis and had a pacemaker installed while awaiting trial).
Salinas-Ospina now seeks a sentencing reduction under Amendment 782 to the
federal sentencing guidelines. That amendment, which became effective on November 1,
2014 and is retroactive, reduced the offense levels assigned to Salinas-Ospina’s drug
quantities by two levels. See U.S.S.G. § 1B1.10(d); U.S.S.G. supp. to app. C, amends. 782,
788 (2014). By reducing Salinas-Ospina’s base offense level to 32, see U.S.S.G. § 2D1.1, the
new guidelines yielded a sentencing range of 168 to 210 months.
Despite Amendment 782, Salinas-Ospina is not entitled to a sentence shorter than
his current 168 months. His sentence is already at the bottom of the new sentencing
range. Under U.S.S.G. § 1B1.10(b)(2)(A), the district court “shall not” sentence him to
“less than the minimum of” this new range. An exception applies if the district court had
earlier given him a below-guidelines sentence because he provided substantial
assistance to the government. Id. § 1B1.10(b)(2)(B). But Salinas-Ospina received a
below-guidelines sentence because of his age and health, not because he provided
substantial assistance to the government. Thus, the district court did not have authority
under 18 U.S.C. § 3582(c)(2) to further reduce Salinas-Ospina’s sentence. See United States
v. Cunningham, 554 F.3d 703, 708 (7th Cir. 2009).
Salinas-Ospina responds that § 1B1.10(b)(2)(A) violates the ex post facto clause,
but his contention is unavailing. He argues that because this guideline went into effect
three years after his crimes, it unconstitutionally eliminated the discretion courts had
enjoyed in § 3582(c)(2) proceedings to reduce sentences below a new guidelines range.
But his analysis of the ex post facto clause is wrong. Section 3582(c)(2) proceedings can
No. 15-2564 Page 3
only reduce sentences, not increase them. See United States v. Diggs, 768 F.3d 643, 645–46
(7th Cir. 2014). The ex post facto clause focuses on “‘lack of fair notice and governmental
restraint when the legislature increases punishment beyond what was prescribed when
the crime was consummated.’” Id. at 645 (quoting Weaver v. Graham, 450 U.S. 24, 30
(1981)). As this court has already held, the amendment to § 1B1.10 presents neither a
danger of increased punishment nor lack of fair notice. See Diggs, 768 F.3d at 645. On the
contrary, Amendment 782 and § 3582(c)(2) make drug sentences like Salinas-Ospina’s
more lenient. And in any case, the ex post facto clause does not create a constitutional
right to a reduced punishment for a past crime. Id. at 645–46; Dillon v. United States, 560
U.S. 817, 828 (2010). Thus no ex post facto violation occurred here.
AFFIRMED.