NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 09-2481, 09-2482 and 09-2483
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UNITED STATES OF AMERICA
v.
SANTOS MENDEZ,
Appellant
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UNITED STATES OF AMERICA
v.
JOSE A. MENDEZ, JR.,
a/k/a Jose Valentine,
a/k/a Rambo
Jose A. Mendez,
Appellant
_____________
UNITED STATES OF AMERICA
v.
LOUIS CORDERO,
a/k/a Louie
Louis Cordero,
Appellant
_____________
Appeals from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-03-cr-00088-001, 002 and 006)
District Judge: Honorable Michael M. Baylson
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Submitted Under Third Circuit LAR 34.1(a)
November 4, 2010
Before: SCIRICA, RENDELL and ROTH, Circuit Judges
(Opinion Filed: November 5, 2010)
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Santos Mendez, Jose Mendez, and Louis Cordero (“defendants”) appeal the May 11,
2009 orders of the United States District Court for the Eastern District of Pennsylvania
denying their motions to reduce their sentences pursuant to 18 U.S.C. § 3582. We will
affirm the District Court’s orders.
I. Background
Because we write solely for the benefit of the parties, we include only the essential
facts. Defendants were indicted together on February 5, 2003 for conspiracy to distribute
more than 50 grams of cocaine base and more than 1,000 grams of heroin within 1,000
feet of a school in violation of 21 U.S.C. §§ 846 and 860. In addition, Jose and Santos
Mendez were charged with using a firearm during and in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1) and possession of a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). Jose Mendez was charged with another
§ 924(c) offense. Santos Mendez was also indicted separately, with others who are not
parties to this appeal, for Hobbs Act robbery, conspiracy to commit Hobbs Act robbery, a
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§ 924(c) offense, and possessing a firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Jose Mendez pleaded guilty to all four drug distribution counts; Louis
Cordero pleaded guilty to the conspiracy count; and Santos Mendez pleaded guilty to all
of the offenses in the robbery case and thereafter pleaded guilty to the three offenses he
was charged with in the drug distribution case.
Santos Mendez was sentenced to life imprisonment for the drug conspiracy,
followed by a mandatory consecutive sentence of 7 years for a § 924(c) violation as
charged in the robbery indictment, and a mandatory consecutive sentence of 25 years for
the § 924(c) offense charged in the drug indictment.
Jose Mendez was sentenced to 168 months’ imprisonment, which included 120
months for the drug conspiracy, and 24 months for each of the § 924(c) counts. The
Court directed that all the sentences run consecutively. Louis Cordero was sentenced to
144 months’ imprisonment. Both Jose Mendez’s and Louis Cordero’s sentences were
reduced as a result of § 5K1.1 motions filed by the government based on the defendants’
substantial assistance in the investigation and prosecution of others.
In November, 2007, two years after defendants were sentenced, the Sentencing
Commission issued Amendment 706, which reduced the base offense level for crack
cocaine offenses under § 2D1.1(c) by two levels. See U.S.S.G. App. C, Amend. 706
(Nov. 1, 2007). On March 3, 2008, the Commission made the amendment retroactively
applicable. See U.S.S.G. App. C, Amend. 713 (Supp. May 1, 2008). Amendment 715
effectuates the two-level reduction intended by Amendment 706 for offenses involving
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both crack cocaine and another controlled substance. See U.S.S.G. App. C Supp., Amend
715 (May 1, 2008). We will refer to Amendments 706 and 715 as “the Amendments.”
In February, 2009, all three defendants filed § 3582 motions for reduction of their
sentences under the Amendments. The District Court denied their motions. All three
defendants filed timely appeals of the District Court’s decisions; their appeals have since
been consolidated at their request.
II. Analysis
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review
the District Court’s decision to deny defendants’ motion to reduce their sentences
pursuant to § 3582(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152,
155 (3d Cir. 2009).
A District Court may reduce a defendant’s sentence under § 3582 “in the case 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 . . . . after
considering the factors set forth in section 3553(a) to the extent that they are applicable, if
such a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). However, district courts’ § 3582 authority to
reduce sentences based on amended guideline ranges is limited by § 1B1.10, which
provides, in relevant part, that a reduction is not authorized under 18 U.S.C. § 3582(c)(2)
if the “amendment listed in subsection (c) does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). Commentary on
the revision elaborates: “The amendment does not have the effect of lowering the
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defendant’s applicable guideline range because of the operation of another guideline or
statutory provision (e.g., a statutory mandatory minimum term of imprisonment).” Id.,
app. note 1(A).
In their § 3582 motions, defendants argued that the Sentencing Commission’s
enactment of the Amendments lowered the sentencing ranges applicable to their offenses.
We agree with the District Court that the Amendments to U.S.S.G. §2D1.1 do not apply
here to lower the base offense level for defendants’ offenses. In denying Jose Mendez
and Louis Cordero’s requests for reduction, the District Court found that the
Amendments did not lower the applicable guideline ranges because the ranges were
based on mandatory minimum sentences higher than the §2D1.1 guideline ranges. Thus,
the sentences fell outside the ambit of § 3582(c)(2)’s grant of permission to modify
imprisonment terms based on lowered sentencing ranges. In denying Santos Mendez’s
motion, the District Court found that his base offense level would not have been affected
by the Amendments because of the large quantity of crack cocaine he possessed. 1
On appeal, Jose Mendez and Louis Cordero claim that the District Court abused its
discretion because its interpretation of the Sentencing Guidelines violated the language
and purpose of the statute, failed to satisfy the goals of sentencing, strained the plain
meaning of the statute, and violated the rule of lenity. Santos Mendez reiterates these
1
The District Court found that due to the large quantity of crack he was found in
possession of, defendant would have been assigned a base offense level of 38 even if he
had been sentenced directly pursuant to § 2D1.1. Therefore, he was not entitled to a
reduction in his sentence under § 3582(c)(2). See United States v. Mateo, 560 F.3d 152,
155 (3d Cir. 2009).
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claims and further asserts that his sentence should be reduced based on considerations of
“fundamental fairness.”
The District Court did not abuse its discretion. Jose Mendez and Louis Cordero
claim that they are entitled to a reduced sentence because § 3582(c) requires only that a
sentence be “based on” a lowered § 2D1.1 range and their sentences were, at least in part,
based on a reduced range. They also argue that the Commission’s policy statements are
merely “advisory” and that the District Court erred in treating them as binding. We
rejected these precise arguments in United States v. Doe, 564 F.3d 305 (3d Cir. 2009),
where we found that the Commission’s policy statements are indeed binding and “require
that the amendment must actually have had the effect of lowering the Guideline range.”
Id. at 310-11. Accordingly, we held that the Amendments did not lower the guideline
range applicable to defendant Doe’s offense, because the range was set by a mandatory
minimum and not by § 2D1.1. Id. at 315. The District Court correctly denied Cordero
and Jose Mendez’s claims.
We also agree with the District Court’s conclusion that Santos Mendez’s
guideline range was not subject to the Amendments’ reduction because of the large
quantity of cocaine Mendez possessed. Santos Mendez’s “fundamental fairness” and
policy arguments do not overcome the Sentencing Guidelines’ unambiguous limitation –
that a sentence may be reduced only when it was based on a range lowered by a guideline
amendment.
For the foregoing reasons, we will affirm the District Court’s judgments as to all
of the defendants.
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