United States v. Reed

09-3636-cr United States v. Reed 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 . 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 24 th day of November, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 AMALYA L. KEARSE, 9 CHESTER J. STRAUB, 10 Circuit Judges. 11 12 13 - - - - - - - - - - - - - - - - - - - -X 14 UNITED STATES OF AMERICA, 15 16 Appellee 17 18 -v.- 09-3636-cr 19 20 ALBERT REED, SR., 21 22 Defendant-Appellant. 23 - - - - - - - - - - - - - - - - - - - -X 24 25 FOR APPELLANT: JONATHAN J. EINHORN, New Haven, CT. 26 1 1 FOR APPELLEE: H. GORDON HALL, Assistant United States 2 Attorney (RAYMOND F. MILLER, Assistant 3 United States Attorney, of counsel), for 4 David B. Fein, United States Attorney for 5 the District of Connecticut, New Haven, 6 CT. 7 8 Appeal from a judgment of the United States District 9 Court for the District of Connecticut (Thompson, C.J.). 10 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 12 AND DECREED that judgment of the district court be AFFIRMED. 13 14 Defendant-appellant Albert Reed, Sr., appeals from the 15 denial of his motion for reconsideration of his sentence 16 under 18 U.S.C. § 3582(c)(2). We assume the parties’ 17 familiarity with the underlying facts, the procedural 18 history, and the issues presented for review. 19 20 Except in a few narrow circumstances, a court may not 21 modify a term of imprisonment once it has been imposed. See 22 18 U.S.C. § 3582(c). One exception permits a court to 23 reduce a sentence based on a sentencing range that was 24 subsequently lowered by the Sentencing Commission. Id. § 25 3582(c)(2). 26 27 Reed concedes on appeal that the original basis for his 28 § 3582(c)(2) motion, Amendment 715 to the Sentencing 29 Guidelines, applies only to defendants who possessed 30 multiple controlled substances, which does not include him. 31 He argues that his sentence should be reconsidered 32 nonetheless in light of recent precedent such as United 33 States v. Regalado, 518 F.3d 143 (2d Cir. 2008), which 34 highlight a sentencing court’s discretion with cocaine base 35 guidelines. This argument is foreclosed by Dillon v. United 36 States, which holds that § 3582(c)(2) “authorize[s] only a 37 limited adjustment to an otherwise final sentence and not a 38 plenary resentencing proceeding.” 130 S. Ct. 2683, 2690-91 39 (2010). Moreover, after the reduction in his sentence from 40 his first motion for reconsideration, Reed is now sentenced 41 based upon a career offender sentencing range. See U.S.S.G. 42 § 4B1.1. Therefore, Reed is ineligible for any further drug 43 offense reductions, because his sentence is no longer “based 44 on” a drug sentencing range for purposes of § 3582(c)(2). 45 46 We have considered all of Reed’s contentions on this 47 appeal and have found them to be without merit. 2 1 Accordingly, the judgment of the district court is AFFIRMED. 2 3 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 8 3