United States v. Reyes ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7410
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO REYES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:03-cr-00195-JRS-3)
Submitted: December 21, 2009 Decided: January 15, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alejandro Reyes, Appellant Pro Se. Norval George Metcalf,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Reyes appeals the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction
of sentence, construed as a motion for reconsideration of the
district court’s denial of Reyes’ previously filed § 3582(c)(2)
motions. Reyes sought relief under Amendment 706 of the U.S.
Sentencing Guidelines Manual (“USSG”), which lowered the base
offense levels for drug offenses involving cocaine base. See
USSG § 2D1.1(c) (2007 & Supp. 2008); USSG App. C Amend. 706.
The district court concluded that Reyes was not entitled to the
benefit of Amendment 706 because he was sentenced as a career
offender. Our review of the record reveals that, although Reyes
qualified as a career offender, USSG § 4B1.1 (2002), he was not
sentenced based on this status. Nevertheless, for reasons that
follow, we conclude that the Amendment would not have the effect
of lowering Reyes’ guideline range. We accordingly affirm. See
United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005)
(holding we “may affirm on any grounds apparent from the
record”).
Under § 3582(c)(2), the district court may reduce the
sentence “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 such a
reduction is consistent with applicable policy statements issued
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by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also
USSG § 1B1.10, p.s. “A reduction in the defendant’s term of
imprisonment is not consistent with this policy statement and
therefore is not authorized under . . . § 3582(c)(2) if . . . an
amendment . . . does not have the effect of lowering the
defendant’s applicable guideline range.” USSG
§ 1B1.10(a)(2)(B), p.s. Amendment 706, the 2007 amendment to
USSG § 2D1.1 that lowered the base offense levels for most
offenses involving crack cocaine, applies retroactively. USSG
§ 1B1.10(c), p.s.
Reyes was held responsible for 13.58 kilograms of
heroin and 28 kilograms of cocaine hydrochloride, which
translated into a marijuana equivalency of 19,180 kilograms and
resulted in a base offense level of 36. With adjustments, his
total offense level was 38. Although Reyes correctly states he
was sentenced under USSG § 2D1.1, his base offense level was not
based on the quantity of cocaine base for which he was held
accountable, but rather on the amount of the other controlled
substances for which he was held accountable, namely heroin and
cocaine hydrochloride. Simply stated, Reyes’ sentence was not
“based on a sentencing range that has subsequently been lowered
by the Sentencing Commission.” Had Reyes been sentenced after
Amendment 706 went into effect, Reyes’ total offense level would
remain 38, the career offender enhancement would not apply, and
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his guideline range would remain the same. See USSG
§§ 2D1.1(D)(ii)(II), 4B1.1(b). Therefore, Amendment 706 does
not have the effect of lowering Reyes’ guideline range, and
Reyes was not entitled to a sentence reduction.
Because Reyes was ineligible for a sentence reduction
under § 3582(c)(2), we affirm the district court’s denial of
relief on this alternate ground. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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