United States of America v. RICARDO BORNALES, III, a/k/a Toto, a/k/a Mr. David

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7310
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RICARDO BORNALES, III, a/k/a Toto, a/k/a Mr. David,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:05-cr-00134-MSD-FBS-1)
Submitted: January 14, 2016 Decided: February 4, 2016
Before MOTZ, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ricardo Bornales, III, Appellant Pro Se. Elizabeth Marie Yusi,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ricardo Bornales, III, appeals from the district court’s
order denying his 18 U.S.C. § 3582(c)(2) (2012) motion. On
appeal, he contends that the district court erred in determining
that he was responsible for over 31 kilograms of “Ice” and that
the district court misstated his offense level. We affirm.
We review for abuse of discretion a district court’s
decision whether to reduce a sentence under § 3582(c)(2) and
review de novo a district court’s conclusion on the scope of its
legal authority under that provision. United States v. Munn,
595 F.3d 183, 186 (4th Cir. 2010). Under § 3582(c)(2), the
district court may modify the term of imprisonment “of a
defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission,” if the Sentencing Guidelines amendment
at issue is retroactively applicable. See U.S. Sentencing
Guidelines Manual § 1B1.10(a)(1), p.s. (2015). Amendment 782
applies retroactively, USSG § 1B1.10(d), p.s., and a sentence
reduction under § 3582(c)(2) is authorized where the Amendment
has the effect of lowering the applicable Guidelines range. See
USSG § 1B1.10(a)(2)(B), p.s. To determine whether an amendment
lowers the applicable Guidelines range, USSG § 1B1.10(b)(1)
provides that the court should substitute the amendment for the
corresponding Guidelines provisions that were applied when the

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movant was sentenced and that the court should leave all other
Guidelines application decisions unaffected. United States v.
Lindsey, 556 F.3d 238, 244 (4th Cir. 2009) (internal quotation
marks omitted).
Bornales’s presentence report (“PSR”) attributed him with
over 31 kilograms of “Ice.” However, a base offense level of
38, at the time of Bornales’s sentencing, required a finding of
only 1.5 kilograms or more of “Ice.” In denying Bornales’s
§ 3582 motion, the district court found him responsible for over
31 kilograms of “Ice,” which Bornales claims was error given
that the district court did not make specific findings at
sentencing.
Amendment 782 lowered the offense levels for drug offenses
involving certain quantities of drugs. See USSG § 2D1.1(c);
USSG App. C Amend. 782. However, the base offense level for
offenses involving 4.5 kilograms or more of “Ice” is unaffected
by Amendment 782. USSG § 2D1.1(c)(1). Accordingly, if Bornales
was indeed responsible for more than 4.5 kilograms of “Ice,” he
would not be eligible for a sentence reduction under Amendment
782, because the Amendment did not lower his sentencing range.
18 U.S.C. § 3582(c)(2).
While the district court may not make new findings of drug
amounts inconsistent with those made during the original
sentencing, the court is permitted to make new findings that are

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supported by the record and consistent with the findings at the
original sentencing. See United States v. Hall, 600 F.3d 872,
876 (7th Cir. 2010). Specifically, “a finding that the
defendants were responsible for at least 4.5 kilograms is not
inconsistent with the conclusion of the original sentencing
court that the defendants were responsible for amounts in excess
of 1.5 kilograms.” United States v. Woods, 581 F.3d 531, 539
(7th Cir. 2009), overruled on other grounds by United States v.
Taylor, 778 F.3d 667 (7th Cir. 2015).
Here, the record reflects that the sentencing court did not
specifically find that Bornales was responsible for over 31
kilograms of “Ice.” Nonetheless, the PSR contains 12 pages
listing numerous “Ice” transactions involving Bornales and
covering a period of over 3 years. Bornales did not object to
the PSR’s drug amount calculation or any of the factual
statements regarding individual sales. In addition, at
sentencing, the district court explicitly adopted the findings
in the PSR. See United States v. Revels, 455 F.3d 448, 451 n.2
(4th Cir. 2006) (holding that, when a defendant, fails to object
to factual findings in his PSR, the court may rely on them in
sentencing the defendant without further inquiry).
Bornales has failed to come forward with any evidence
showing that the amounts stated in the PSR were inaccurate.
Accordingly, given the high level of deference due to the

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district court in a § 3582 proceeding, we conclude that it was
not an abuse of discretion to hold Bornales responsible for over
31 kilograms of “Ice.” As such, Amendment 782 did not lower
Bornales’s Guidelines range, and he is, therefore, ineligible
for a sentence reduction. See United States v. Moore, 582 F.3d
641, 644 (6th Cir. 2009) (holding a reversal of district court’s
ruling on § 3582 motion should only occur if court is “firmly
convinced that a mistake has been made”).
Bornales’ second argument is easily rejected. Bornales
contends that, at his original sentencing, his base offense
level was 37 and, as such, the district court erred in the
instant proceeding by stating that his offense level was 38. In
the instant case, however, the district court, was clearly
referring to the base offense level under USSG § 2D1.1, which
was 38 at Bornales’ original sentencing as well as after
Amendment 782. While Bornales’ adjusted offense level was 37 at
his original sentencing, such a calculation was based on
additional adjustments, not relevant to the district court’s
analysis in the instant case.
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

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