United States v. Darco , 377 F. App'x 61 ( 2010 )

09-1874-cr
United States v. Darco
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
7 SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
9 CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11 “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12 PARTY NOT REPRESENTED BY COUNSEL.
13
14 At a stated term of the United States Court of Appeals for the Second Circuit, held at
15 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16 York, on the 14 th day of May, two thousand nine.
17
18 PRESENT: JON O. NEWMAN,
19 JOHN M. WALKER, JR.,
20 GERARD E. LYNCH,
21 Circuit Judges.
22
23 ------------------------------------------------------------------
24 UNITED STATES OF AMERICA,
25 Appellee,
26 v. No. 09-1874-cr
27
28 JOHN DARCO,
29 Defendant-Appellant,
30
31 ALBERT PANEQUE,
32 Defendant.
33
34 --------------------------------------------------------------------
35 APPEARING FOR APPELLANT: B. Alan Seidler, New York, New York.
36
37 APPEARING FOR APPELLEE: M ichael Yaeger, A ssistant U nited States
38 Attorney, (Emily Berger, Assistant United States
39 Attorney, on the brief) for Benton Campbell,
40 United States Attorney for the Eastern District of
41 New York.
42 Appeal from the United States District Court for the Eastern District of New York
43 (Charles P. Sifton, Judge).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the judgment of the district court is AFFIRMED.
3 In 2000, a jury convicted John Darco of three counts of armed bank robbery in
4 violation of 18 U.S.C. §§ 2113(a) and (d), conspiracy to commit armed bank robbery in
5 violation of 18 U.S.C. § 371, use of a firearm during a crime of violence in violation of 18
6 U.S.C. § 924(c)(1)(A), possession of a firearm by a convicted felon in violation of 18 U.S.C.
7 §§ 922(g)(1) and 924(a)(2); and prison escape in violation of 18 U.S.C. § 751(a). In 2001,
8 the district court sentenced him to 346 months’ imprisonment. In 2008, Darco moved for a
9 sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), and the district court denied that
10 motion. Darco appeals that denial.
11 I. Armed Career Criminal Determination
12 At sentencing, the district court found Darco to be an armed career criminal within
13 the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e), because he had previously
14 been convicted of three bank robberies.1 The court therefore applied the provisions of United
1
18 U.S.C. § 924(e)(1) provides:
In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court referred to in
section 922(g)(1) of this title for a violent felony . . .
committed on occasions different from one another, such
person shall be . . . imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to,
such person with respect to the conviction under section
922(g).
2
1 States Sentencing Guidelines (“U.S.S.G.”) Section 4B1.4,2 thereby increasing his criminal
2 history category (“CHC”) from III to VI3 and his offense level from 32 to 34, yielding a
3 Guidelines range of 262 to 367 months’ imprisonment.
4 Darco appealed his sentence, arguing that he should not be considered an armed career
5 criminal because his three prior robbery convictions had come in a single case, based on a
6 single series of transactions that led to a single concurrent sentence. In 2002, we rejected that
7 argument based on our prior holding in United States v. Rideout, 3 F.3d 32, 35 (2d Cir.
8 1993). See United States v. Paneque, 60 F. App’x. 339, 342 (2d Cir. 2002).
9 Several years thereafter, Darco sought a sentence reduction under § 3582(c)(2). That
10 section provides:
11
12 The court may not modify a term of imprisonment once it has
13 been imposed except that . . . in the case of a defendant who has
2
Section 4B1.4 provides:
(a) A defendant who is subject to an enhanced sentence under
the provisions of 18 U.S.C. § 924(e) is an armed career
criminal.
(b) The offense level for an armed career criminal is the
greatest of: . . . .
(3)(A) 34, if the defendant used or possessed the firearm or
ammunition in connection with . . . a crime of violence . . . .
(c) The criminal history category for an armed career criminal
is . . . .
(2) Category VI, if the defendant used or possessed the
firearm or ammunition in connection with . . . a crime of
violence . . . .
3
In its April 21, 2009 Memorandum and Order, the district court incorrectly stated that
Darco’s CHC was enhanced to level IV. In fact, at sentence, the district court noted that
Darco’s CHC was VI.
3
1 been sentenced to a term of imprisonment based on a sentencing
2 range that has subsequently been lowered by the Sentencing
3 Commission pursuant to 28 U.S.C. 994(o) . . . the court may
4 reduce the term of imprisonment . . . if such a reduction is
5 consistent with applicable policy statements issued by the
6 Sentencing Commission.
7
8 Darco bases his argument on the 2007 Amendment 709 to U.S.S.G. Section 4A1.2.
9 Section 4A1.2 instructs courts how to count multiple prior sentences when computing a
10 defendant’s criminal history, and Amendment 709 altered the way past offenses are counted
11 for that purpose.4 Darco argues that Amendment 709 compels the district court to count his
12 prior convictions as one offense rather than three when determining whether to sentence him
13 as an armed career criminal. If the court had counted those convictions as one offense, Darco
14 would not have been considered an armed career criminal.
15 But Darco’s argument misses the mark. Amendment 709 changed how multiple
16 convictions are counted only for the purpose of calculating a defendant’s criminal history
17 points under U.S.S.G. § 4A1.2. But § 4A1.2 does not bear on the calculation of Darco’s
18 sentence. Darco’s sentence was enhanced under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4,
4
Amendment 709 provides:
If the defendant has multiple prior sentences, determine
whether those sentences are counted separately or as a single
sentence. Prior sentences always are counted separately if the
sentences were imposed for offenses that were separated by
an intervening arrest . . . . If there is no intervening arrest,
prior sentences are counted separately unless (A) the
sentences resulted from offenses contained in the same
charging instrument; or (B) the sentences were imposed on
the same day. Count any prior sentence covered by (A) or (B)
as a single sentence.
4
1 which are entirely separate from U.S.S.G. § 4A1.2. Cf. U.S.S.G. § 4B1.4 cmt n.1 (noting that
2 the time periods for the counting of prior sentences under § 4A1.2 do not apply to “the
3 determination of whether a defendant is subject to an enhanced sentence under 18 U.S.C.
4 § 924(e).”). Amendment 709 did not change how multiple convictions are counted for the
5 purpose of these provisions. A change in a Guideline governing how convictions are counted
6 for purposes of the criminal history score does not supersede this court’s interpretation of a
7 separate statute that has its own approach to counting prior convictions, which remains good
8 law and is the law of this case. Amendment 709 speaks only to the calculation of Darco’s
9 criminal history points under U.S.S.G. § 4A1.2, and it does not lower the sentencing
10 Guideline range calculated for Darco pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.
11 In any event, even if Amendment 709 did pertain to Darco’s sentencing Guideline
12 range, that amendment cannot serve as the basis of a § 3582(c)(2) motion because the
13 Sentencing Guidelines do not specify that the amendment applies retroactively. Section
14 3582(c)(2) authorizes sentence reductions only to the extent “consistent with applicable
15 policy statements issued by the Sentencing Commission.” The applicable policy statement
16 specifies those amendments that apply retroactively to permit such reductions; Amendment
17 709 is not on the list. U.S.S.G. § 1B1.10(a), (c). See United States v. Caceda, 990 F.2d 707,
18 710 (2d Cir. 1993) (“Only certain enumerated amendments are specified by the Guidelines
19 as exceptions to the general rule that amendments are not to be applied retroactively even
20 though appellate review has not been concluded. . . . [T]he pertinent amendment is not
5
1 among those explicitly stated to be retroactive by the Sentencing Commission, and should
2 not be applied retroactively.”) (internal quotation marks and citations omitted).
3 II. Consecutive Mandatory Minimum Sentence Issue
4 Darco’s conviction under 18 U.S.C. § 924(c)(1)(A) carried a mandatory seven-year
5 sentence because Darco brandished a gun in the course of the robbery. The district court
6 imposed that sentence to run consecutively to his sentence on the § 922(g) count, which
7 called for a mandatory minimum of fifteen years. Darco argues that his § 924(c)(1)(A)
8 sentence is “illegal” because it was contrary to United States v. Whitley, 529 F.3d 150 (2d
9 Cir. 2008), and United States v. Williams, 558 F.3d 166 (2d Cir. 2009), which hold that a
10 district court may not impose a consecutive mandatory minimum sentence for a § 924(c)
11 violation if the court imposes a longer mandatory minimum sentence on another count of
12 conviction.
13 We decline to review this argument. First, Darco failed to raise this argument in the
14 district court. Second, Darco’s sentence reduction motion under § 3582(c)(2) authorizes a
15 court to modify his sentence only if it was “based on a sentencing range that has subsequently
16 been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. §
17 3582(c)(2). Since this argument does not implicate any sentencing range that has
18 subsequently been lowered, § 3582(c)(2) is not the proper vehicle for it. To the extent that
19 Darco challenges the legality of the sentence imposed, the proper vehicle for such a
20 challenge would be a motion pursuant to 28 U.S.C. § 2255. However, we express no views
6
1 as to whether, on such a motion, the rule of Whitley and Williams would be available on
2 collateral attack.
3 For the foregoing reasons, the judgment of the district court is AFFIRMED.
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, Clerk of Court
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