09-0936-cr
USA v. Cirineo
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 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.
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 20th day of April, two thousand ten.
PRESENT:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
__________________________________________
United States of America,
Appellee,
v. 09-0936-cr
Efrain Nicolas Cirineo,
Defendant-Appellant.
__________________________________________
FOR APPELLANT: Efrain N. Cirineo, pro se, Winton, N.C.
FOR APPELLEE: Preet Bharara, United States Attorney for the
Southern District of New York; Antonia M. Apps,
Katherine Polk Failla, Assistant United States
Attorneys, New York, N.Y.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Crotty, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Efrain N. Cirineo, pro se, appeals from the district court’s
order denying his motion made pursuant to 18 U.S.C. § 3582(c)(2)
for reduction of an imposed term of imprisonment. We assume the
parties' familiarity with the facts and procedural history.
Section 3582(c)(2) provides that "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 . . . , the court may reduce the term of
imprisonment, 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." Section 1B1.10(a)(2) of the
Sentencing Guidelines provides, in relevant part, that:
A reduction in the defendant's term of
imprisonment is not consistent with this policy
statement and therefore is not authorized under 18
U.S.C. § 3582(c)(1) if -
(A) none of the amendments listed in subsection (c) is
applicable to the defendant; or
(B) an amendment listed in subsection (c) does not have the
effect of lowering the defendant's applicable guideline
range.
This Court reviews de novo a district court's determination as to
whether a defendant's sentence was based on a sentencing range
that was subsequently lowered by the Sentencing Commission.
United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009)
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(citing United States v. Pettus, 303 F.3d 480, 483 (2d Cir.
2002)).
The November 2007 amendment to U.S.S.G. § 2D1.1(c)(1) did
not reduce the guideline offense level applicable to the highest
category of cocaine base offenses, which remained at 38, but did
increase the minimum quantity of cocaine base that would place an
offense at that level from 1.5 to 4.5 kilograms. However,
because the original sentencing court found that Appellant was
responsible for distributing 19 kilograms of cocaine base, well
in excess of both 1.5 and 4.5 kilograms, the calculation of
appellant’s base offense level of 38 is unaffected by the
Guidelines amendment and he is therefore ineligible for a
sentence reduction.
In United States v. Reddick, we determined that there is no
statutory right to counsel under the Criminal Justice Act in
connection with a § 3582(c) motion, and that the provision of
counsel for such motions should rest in the discretion of the
district court. See 53 F.3d 462, 464-65 (2d Cir. 1995). We
noted that the merits of the motion will be a "significant factor
in the exercise of that discretion." Id. at 465 n.2. In this
case, where it was readily ascertainable from the record that
Appellant was ineligible for a reduction in sentence, the court
did not abuse its discretion by denying his motion for
appointment of counsel.
Finally, the district court did not abuse its discretion by
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choosing not to hold a hearing, where the sentencing court had
previously found Appellant to be responsible for distributing a
quantity of cocaine base well above the 4.5 kilogram threshold.
Rule 43(b)(4) of the Federal Rules of Criminal Procedure provides
that a defendant is not required to be present at a proceeding
"involv[ing] the correction or reduction of sentence under Rule
35 or 18 U.S.C. § 3582(c)." Furthermore, U.S.S.G. § 1B1.10 makes
clear that "proceedings under 18 U.S.C. § 3582(c)(2) and this
policy statement do not constitute a full resentencing of the
defendant," U.S.S.G. § 1B1.10(a)(3). Section 6A1.3 of the
Guidelines does allow hearings "[w]hen any factor important to
the sentencing determination is reasonably in dispute." U.S.S.G.
§ 6A1.3. However, in this case, the district court did not abuse
its discretion by choosing not to hold a hearing where the
sentencing court’s finding that Appellant was responsible for
distributing a quantity of cocaine base well above the 4.5
kilogram threshold was not reasonably in dispute.
For the reasons stated above, the district court’s order is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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