United States v. Lena , 241 F. App'x 877 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-27-2007
USA v. Lena
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5089
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"USA v. Lena" (2007). 2007 Decisions. Paper 684.
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DLD-290 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-5089
________________
UNITED STATES OF AMERICA
v.
IGNAZIO LENA
a/k/a
Eddy Lena
Ignazio Lena,
Appellant
______________________________________
On Appeal From the United States District Court
For the District of Delaware
(D.C. Crim. No. 89-cr-00049-3)
District Judge: Honorable Kent A. Jordan
______________________________________
Submitted For Possible Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
and/or For a Certificate of Appealability
June 28, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges.
(Filed July 27, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Ignazio Lena appeals from the District Court’s order denying his motion under 18
U.S.C. § 3582 for a reduced sentence. Because this appeal presents no substantial
question, we will summarily affirm the judgment of the District Court.
In 1990, Ignazio Lena pleaded guilty to charges that he engaged in a conspiracy to
distribute cocaine and heroin in violation of 21 U.S.C. § 841(a)(1), distribution of heroin
in violation of 8 U.S.C. § 841(a)(1), and racketeering in violation of 18 U.S.C. § 1962(c).
The District Court determined that his base offense level was 36. The court imposed a
two-level enhancement pursuant to U.S.S.G. § 2D.1(b)(1) for possession of a firearm and
a two-level enhancement for the purity of the drugs involved, yielding a total offense
level of 40 and a sentencing range of 292-365 months. Lena was sentenced to a term of
imprisonment of 340 months. He appealed his sentence, which we affirmed. United
States v. Lena, 928 F.2d 398 (3d Cir. 1991) (table).
Lena filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255 seeking to void his guilty plea and sentence. It was denied without prejudice.
Lena filed his second § 2255 motion claiming that his counsel was ineffective in advising
him to accept the plea agreement. The District Court denied the motion and we affirmed.
See United States v. Lena, C.A. No. 97-7364 (3d Cir. May 1, 1998).
In 1997, Francesco Bellitti, one of the leaders of the conspiracy, was granted a re-
sentencing hearing. At the hearing, Bellitti, who had received a 420-month sentence, was
sentenced to 262 months’ imprisonment.
2
Lena then filed this motion for re-sentencing pursuant to 18 U.S.C. § 3582(c)(2),
or in the alternative, for relief from judgment pursuant to FED. R. CIV. P. 60(b)(6). In his
motion he claimed that his sentence should be reduced to eliminate the disparity between
his and Bellitti’s sentence. He argued that the imposition of the two-level enhancement
for the purity of drugs involved was inequitable because Bellitti was not assessed with a
similar enhancement. He also argued that the enhancement under 2D1.1(b) for
possession of a firearm was in error because it was not reasonably foreseeable that his co-
conspirators would be armed. He subsequently added the claim that the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), retroactively reduced his
sentencing range. The District Court denied the motion and this appeal ensued.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The standard of review of a
district court’s interpretation and application of the Sentencing Guidelines is plenary.
United States v. Yeaman, 194 F.3d 442, 456 (3d Cir.1999).
Section 3582(c)(2) does not grant courts the authority to reduce a sentence merely
to correct disparities in sentences which are unrelated to retroactive amendments to the
Guidelines by the Sentencing Commission. As a general matter, without specific
authorization, a court cannot alter a term of imprisonment after it has been imposed.
United States v. Deleo, 644 F.2d 300, 301 (3d Cir. 1981). However, § 3582(c)(2) allows
a court to reduce a sentence when a defendant has been sentenced to a term of
imprisonment within a sentencing range that the Sentencing Commission has
subsequently lowered pursuant to 28 U.S.C. § 994(o). United States v. McBride, 283
3
F.3d 612, 614 (3d Cir. 2002). Under § 3582(c)(2), a court may only reduce a sentence in
response to an amendment of the Sentencing Guidelines if the amendment is one of the
amendments named in the Sentencing Commission’s policy statement § 1B1.10.1 Id.
Lena argued that subsequent amendments in 1992, listed in Appendix C to the
Sentencing Guidelines as 439, and 1994, listed as 503, lowered his sentencing range
because, under the Guidelines as amended, he would not have received the firearm
sentence enhancement. Regardless of whether these amendments would have affected his
sentence, they cannot serve as the basis for a sentence reduction because they are not
listed in U.S.S.G. § 1B1.10(c). Further, we agree with the District Court that Booker does
not provide a basis for a sentence reduction under § 3582(c). See, e.g., United States v.
Price, 438 F.3d 1005, 1007 (10th Cir. 2006).
In short, upon consideration of the record below and Lena’s “Petition on Summary
Action,” we conclude that his appeal presents us with no substantial question. See Third
Circuit L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we will summarily affirm the District
Court’s order.2
1
§ 1B1.10(c) reads: “Amendments covered by this policy statement are listed in
Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461,
484, 488, 490, 499, 505, 506, 516, 591, 599, 606, and 657.”
2
Because we agree with the District Court that Lena cannot proceed via Rule
60(b), to the extent that he requires a certificate of appealability to pursue his appeal, we
decline to issue one.
4