United States v. Pedro Lora

12-3685-cr
United States of America v. Pedro Lora
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND
THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 16th
day of July, two thousand thirteen.
PRESENT: JON O. NEWMAN,
RALPH K. WINTER,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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United States of America,
Appellee,
v.
12-3685-cr
Ricardo Leonardo, Yenny Guzman,
Defendants,
Pedro Lora, aka Smokey,
Defendant-Appellant.
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FOR APPELLANT: Frank J. Riccio, II, Law Offices of
Frank J. Riccio LLC, Bridgeport, CT.
FOR APPELLEE: Jonathan Francis, Assistant United
States Attorney (Sandra S. Glover
and Robert M. Spector, Assistant
United States Attorneys, on the
brief), United States Attorney’s
Office for the District of
Connecticut, New Haven, CT.
Appeal from the United States District Court for the
District of Connecticut (Covello, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the District Court is AFFIRMED.
Defendant–Appellant Pedro Lora appeals from an August 30,
2012, order denying his motion for a sentence reduction under 18
U.S.C. § 3582(c)(2). On September 19, 2005, pursuant to a Federal
Rule of Criminal Procedure 11(c)(1)(C) plea agreement, Lora pled
guilty to one count of conspiracy to possess with the intent to
distribute 50 grams or more of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846. On October 24,
2011, Lora moved for a § 3582(c)(2) sentence reduction based on
Amendment 750 to the Sentencing Guidelines, which re-promulgated
prior temporary reductions to the base offense levels for crack
cocaine offenses. See U.S.S.G. App. C., Amend. 750 (2011).
A court may reduce a defendant’s sentence if he has been
“sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission,”
and if such a reduction is “consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C.
2
§ 3582(c)(2); see Dillon v. United States, 130 S. Ct. 2683, 2691
(2010). The District Court held that because Lora’s Rule
11(c)(1)(C) plea agreement did not refer to a guidelines range, his
15-year sentence was not based on an amended guidelines range, and
Lora was thus ineligible for § 3582(c)(2) relief. The
determination of whether an original sentence was “based on” a
sentencing range that has been lowered by the Sentencing Commission
is a matter of statutory interpretation, and our review is de novo.
United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009) (quoting
§ 3582(c)(2)). In conducting that review here, we assume the
parties’ familiarity with the facts and record of the prior
proceedings, to which we refer only as necessary to explain our
decision to affirm.
Lora urges that the Supreme Court’s holding in Freeman v.
United States, 131 S. Ct. 2685 (2011), authorizes a sentence
reduction because his plea agreement expressly refers to, or is at
least “loosely based upon,” the Guidelines. Appellant Br. at 6;
see Freeman, 131 S. Ct. at 2695-97 (Sotomayor, J., concurring)
(where a defendant is sentenced pursuant to a Rule 11(c)(1)(C)
agreement, a district court has jurisdiction to consider a sentence
reduction only if the agreement makes clear that the basis for a
term of imprisonment is the guidelines range). The District Court
rejected this argument, but we need not consider it, as we affirm
on a different ground. Lora’s calculated guidelines range was
based on the finding that he was a career offender, and Amendment
3
750 to the Guidelines did not affect his career offender
enhancement. Because the amendment does not lower Lora’s
applicable guideline range, he is ineligible for a sentence
reduction.1
Section 1B1.10 of the Sentencing Guidelines provides that
“[a] reduction in the defendant’s term of imprisonment is not
consistent with this policy statement and therefore is not
authorized under 18 U.S.C. § 3582(c)(2) if . . . [an amendment]
does not have the effect of lowering the defendant’s applicable
guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Amendment 759 to
the Guidelines, effective November 1, 2011, amended the advisory
notes to § 1B1.10 to define the “applicable guideline range” as
“the guideline range that corresponds to the offense level and
criminal history category determined pursuant to § 1B1.1(a), which
is determined before consideration of any departure provision in
the Guidelines Manual or any variance.” See U.S.S.G. App. C,
Amend. 759 (2011); U.S.S.G. § 1B1.10 cmt. n.1(A).
At Lora’s sentencing on January 17, 2006, the Court adopted
the offense level and criminal history category from the Probation
Department’s Pre-Sentence Report (“PSR”). The PSR included a
career offender enhancement pursuant to U.S.S.G. § 4B1.1, resulting
in a total offense level of 35. Based on this offense level and
1
“[I]t is long-settled law that we may affirm the judgment of
the District Court on any ground that the record supports.”
Carpenter v. Republic of Chile, 610 F.3d 776, 781 n.6 (2d Cir.
2010).
4
a criminal history category of VI, Lora’s sentencing range was 292
to 365 months’ imprisonment. The Court departed from the
Guidelines and the plea agreement and sentenced Lora to a term of
11 years’ imprisonment. Following an initial appeal not relevant
here, on remand, the District Court sentenced Lora to 15 years’
imprisonment in conformity with the plea agreement.
The fact that the District Court originally departed
downward from both the Guidelines and the minimum sentence in the
plea agreement has no effect on Lora’s ineligibility for a sentence
reduction. Prior to Amendment 759's definition of “applicable
guideline range,” this Court had held that where a sentencing judge
departs from a range computed under the career offender guideline
to a lower range, the post-departure range was the “guideline range
applicable” to a defendant for the purposes of § 1B1.10. See
United States v. Rivera, 662 F.3d 166, 177 (2d Cir. 2011). But our
decision in Rivera acknowledged that the then-proposed Amendment
759, once effective, would “prescribe the precise construction of
‘applicable guideline range’ that we refuse to give the existing
guideline, i.e., it is the pre-departure range from the initial
sentencing.” Id. at 183; see also United States v. Steele, 714
F.3d 751, 756 (2d Cir. 2013) (discussing the limitations of
Rivera’s holding after the effective date of Amendment 759).2
2
Lora filed a pro se § 3582(c)(2) motion on October 24, 2011
— a week before the effective date of Amendment 759. In addition
to defining the “applicable guideline range,” Amendment 759
clarified that a sentencing court shall use the version of § 1B1.10
5
Although Amendment 750 reduced the base offense levels for
crack cocaine offenses, it made no such reduction to the career
offender enhancements set forth in § 4B1.1. As a career offender,
Lora is ineligible for § 3582(c)(2) relief. See U.S.S.G.
§ 1B1.10(a)(2)(B); see also U.S.S.G. App. C, Amend. 750 (2011)
(explaining that offenders sentenced pursuant to § 4B1.1 receive
guideline ranges that are “unaffected by a reduction in the Drug
Quantity Table”); United States v. Mock, 612 F.3d 133, 138 (2d Cir.
2010) (a defendant sentenced as career offender under § 4B1.1 is
ineligible for a sentence reduction under crack cocaine amendments
to the Guidelines). Lora also argues that recent case law
developments render his career offender status uncertain, but this
argument is not properly raised on a § 3582(c)(2) motion. See
Dillon, 130 S. Ct. at 2694. Accordingly, the order of the District
Court is AFFIRMED.
FOR THE COURT,
CATHERINE O’HAGAN WOLFE, Clerk
that is in effect on the date on which the court reduces the term
of imprisonment. U.S.S.G. App. C, Amend. 759 (2011); U.S.S.G.
§ 1B1.10 cmt. n.6. The District Court’s order denying Lora’s
motion was entered on August 30, 2012 — well after the effective
date of Amendment 759 — and the amendment’s definition of
“applicable guideline range” governs this appeal.
6