Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-14-2008
USA v. Gustavo Fernandez
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1335
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Recommended Citation
"USA v. Gustavo Fernandez" (2008). 2008 Decisions. Paper 1440.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1440
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ALD-153 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1335
___________
UNITED STATES OF AMERICA
v.
GUSTAVO FERNANDEZ
also known as GUSTAVO
Gustavo Fernandez,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 99-cr-00256-3)
District Judge: Honorable Jan E. Dubois
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 6, 2008
Before: SLOVITER, FISHER and HARDIMAN, CIRCUIT JUDGES.
(Filed: March 14, 2008 )
_________
OPINION
_________
PER CURIAM
Gustavo Fernandez appeals the District Court’s order denying his motion for a
modification of his sentence filed pursuant to 18 U.S.C. § 3582(c)(2). The procedural
history of this case and the details of Fernandez’s claims are well known to the parties, set
forth in the District Court’s thorough order, and need not be discussed at length. Briefly,
in January 2002, Fernandez pleaded guilty to conspiracy to possess with intent to
distribute heroin and cocaine base. In April 2004, he was sentenced to ninety-six months
in prison. He did not appeal. In December 2007, Fernandez filed a § 3582(c)(2) motion
seeking a modification of his sentence. The District Court denied the motion, and
Fernandez filed a timely notice of appeal.1
Fernandez sought relief based on Amendment 706 to the sentencing guidelines
which lowered the base offense level for cocaine base offenses. However, the District
Court noted that Fernandez’s sentence was not based on the crack cocaine involved in the
conspiracy but rather the heroin. In his plea agreement, Fernandez stipulated that he
possessed with intent to distribute at least three but less than ten kilograms of heroin.
Thus, Amendment 706 is not applicable, and Fernandez’s § 3582 motion is without merit.
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
the District Court, we will summarily affirm the District Court’s order. See Third Circuit
I.O.P. 10.6.
1
Fernandez appears to appeal the District Court’s September 4, 2007 order denying
a separate motion for immediate deportation as well. However, because the notice of
appeal is dated January 23, 2008, it is untimely with respect to that order. Moreover, as
noted by the District Court, 8 U.S.C. § 1231 provides no private right of action to compel
the removal of an alien.
2