United States v. Albanese ( 1998 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1506
UNITED STATES,
Appellee,
v.
ARTHUR J. ALBANESE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert G. Levitt and Christopher T. Braddock on brief for
appellant.
Margaret E. Curran, United States Attorney and James H.
Leavey, Assistant United States Attorney on brief for appellee.
December 16, 1998
Per Curiam. Upon careful review of the briefs, appendices,
and record, we conclude that the district court properly
denied defendant's motion nominally brought under 18 U.S.C.
3582(c)(2).
As a threshold matter, the district court lacked
authority under 3582(c)(2) to grant the relief sought by
defendant, namely vacation of his conviction under 18 U.S.C.
924(c)(1). The district court's authority to reduce a
sentence under 3582(c)(2) is strictly limited. See United
States v. Jordan, F.3d , 1998 WL 804788 (1st Cir.
November 25, 1998). Accordingly, we may uphold the denial of
defendant's motion, even without considering its merits. Seeid. at *1.
Nonetheless, even were we to consider the merits, the
result would be no different. To the extent that the district
court might have had authority to entertain defendant's
motion, whether under 28 U.S.C. 2255 or otherwise, still the
denial would have been proper, essentially for the reasons
stated in the magistrate judge's Report and Recommendation
dated March 5, 1998. The district court's conclusion that
defendant "carried" a firearm during and in relation to his
drug trafficking offense, so that his conviction under
924(c)(1) should be upheld even in light of Bailey v. United
States, 516 U.S. 137 (1995) also was not inconsistent with
Muscarello v. United States, 118 S.Ct. 1911, 1913-18 (1998),
decided after the district court issued its ruling.
We decline to consider defendant's new argument about
jury instructions, which argument was not clearly developed
before the district court and is not supported by a record
adequate for appellate review before this court.
Affirmed. See 1st Cir. Loc. R. 27.1.