United States v. Moulton ( 2010 )


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  • 08-3244-cr
    United States v. Moulton
    
    
                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT
    
                                                      SUMMARY ORDER
    RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
    CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
    “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 28 th day of May, two thousand ten.
    
    PRESENT:             JON O. NEWMAN,
                         CHESTER J. STRAUB,
                         REENA RAGGI,
                                    Circuit Judges.
    
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    UNITED STATES OF AMERICA,
                            Appellee,
                   v.                                                                      No. 08-3244-cr
    
    GARY MOULTON,
                                                       Defendant-Appellant.
    ------------------------------------------------------------------------------------
    
    FOR APPELLANT:                                     Barry D. Leiwant, Federal Defenders of New York, Inc.,
                                                       Appeals Bureau, New York, New York.
    
    FOR APPELLEE:                                      J.E. Shreve Ariail, Assistant United States Attorney (Jo
                                                       Ann M. Navickas, Assistant United States Attorney, on
                                                       the brief), for Benton J. Campbell, United States
                                                       Attorney, Eastern District of New York, Brooklyn, New
                                                       York.
    
              Appeal from the United States District Court for the Eastern District of New York (I.
    Leo Glasser, Judge).
    
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
    
    DECREED that the district court’s order entered on June 23, 2008, is AFFIRMED.
    
           Gary Moulton was convicted in 1990, after a jury trial, of possession with intent to
    
    distribute more than five grams of cocaine base (“crack cocaine”) in violation of 21 U.S.C.
    
    § 841(a)(1) and (b)(1)(B). The district court sentenced Moulton as a career offender to 262
    
    months’ imprisonment. See U.S.S.G. § 4B1.1. Moulton here appeals from the denial of his
    
    pro se motion for a sentence reduction. Because this appeal turns on an issue of statutory
    
    interpretation, we review the district court’s decision de novo. See United States v.
    
    Williams, 
    551 F.3d 182
    , 185 (2d Cir. 2009). In doing so, we assume the parties’ familiarity
    
    with the facts and record of prior proceedings, which we reference only as necessary to
    
    explain our decision to affirm.
    
           “A district court may not generally modify a term of imprisonment once it has been
    
    imposed.” United States v. McGee, 
    553 F.3d 225
    , 226 (2d Cir. 2009) (alteration and internal
    
    quotation marks omitted). Under 18 U.S.C. § 3582(c)(2), however, a district court may
    
    reduce a sentence if the defendant “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 by the Sentencing
    
    Commission.” Now represented by counsel, Moulton submits that Amendment 706, which
    
    provides a two-level reduction in base offense levels for crack cocaine offenses and was
    
                                                 2
    made retroactive by Amendment 713, see United States v. McGee, 553 F.3d at 226 & n.1,
    
    permitted the district court to reduce his sentence. Moulton acknowledges that, because he
    
    was sentenced as a career offender, Amendment 706 would not have the effect of lowering
    
    the applicable Guidelines range for his sentence. See U.S.S.G. § 1B1.10(a)(2)(B) (providing
    
    that sentence reduction “is not consistent with this policy statement and therefore is not
    
    authorized under 18 U.S.C. § 3582(c)(2)” if, inter alia, Amendment 706 “does not have the
    
    effect of lowering the defendant’s applicable guideline range”). Nevertheless, he maintains
    
    that he is entitled to a reduction because his sentence was, in part, “based on” the now-
    
    amended crack cocaine Guidelines. 18 U.S.C. § 3582(c)(2).
    
           The argument is foreclosed by United States v. Martinez, 
    572 F.3d 82
     (2d Cir. 2009),
    
    decided after briefs were submitted in this case. Martinez holds that a defendant whose
    
    sentencing range is based on the career offender Guideline, see U.S.S.G. § 4B1.1, is not
    
    eligible for a sentence reduction under the amended crack cocaine Guidelines, see United
    
    States v. Martinez, 572 F.3d at 84-85. Those of our sister circuits to consider the issue have
    
    similarly ruled. See United States v. Munn, 
    595 F.3d 183
    , 187 & n.7 (4th Cir. 2010); United
    
    States v. Wesson, 
    583 F.3d 728
    , 731 (9th Cir. 2009); United States v. Perdue, 
    572 F.3d 288
    ,
    
    293 (6th Cir. 2009); United States v. Mateo, 
    560 F.3d 152
    , 155 (3d Cir. 2009); United States
    
    v. Caraballo, 
    552 F.3d 6
    , 10 (1st Cir. 2008); United States v. Sharkey, 
    543 F.3d 1236
    , 1239
    
    (10th Cir. 2008); United States v. Liddell, 
    543 F.3d 877
    , 882-83 & n.3 (7th Cir. 2008);
    
    United States v. Moore, 
    541 F.3d 1323
    , 1327-28 (11th Cir. 2008); United States v. Thomas,
    
                                                  3
    
    524 F.3d 889
    , 890 (8th Cir. 2008); see generally United States v. McGee, 553 F.3d at 227
    
    (noting “consensus” that defendant sentenced under career offender Guideline does not
    
    qualify for sentencing reduction under crack cocaine amendment). We, therefore, conclude
    
    that the district court correctly denied Moulton’s motion for a sentence reduction.
    
           We have considered Moulton’s other arguments on appeal and conclude that they are
    
    without merit. Accordingly, we AFFIRM the June 23, 2008 order of the district court.
    
                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court
    
    
    
    
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