08-3826-cr
USA v. Smith
Nevas, J.
D. Ct.
03-cr-00261
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GO VERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER O N SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3 the 5th day of January, two thousand ten,
4
5 PRESENT:
6 Pierre N. Leval,
7 Barrington D. Parker,
8 Richard C. Wesley,
9 Circuit Judges,
10 ______________________________________
11
12 United States of America,
13
14 Appellee,
15
16 -v.- No. 08-3826-cr
17 SUMMARY ORDER
18
19 Marvin Smith,
20
21 Defendant-Appellant.
22 _______________________________________
23
1 FOR DEFENDANT-APPELLANT: Robert J. Sullivan, Jr., Westport, CT.
2
3 FOR APPELLEE: Michael E. Runowicz, Assistant United States Attorney
4 (Sandra S. Glover, Assistant United States Attorney, Nora
5 R. Dannehy, Acting United States Attorney, District of
6 Connecticut, on the brief).
7
8 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
9 DECREED that the judgment of the district court is AFFIRMED.
10
11 Defendant-appellant Marvin Smith appeals from an order of the United States District Court
12 for the District of Connecticut (Nevas, J.) dated July 24, 2008, which reduced Smith’s sentence of
13 imprisonment from 120 months to 99 months, in accordance with Smith’s amended Sentencing
14 Guidelines (“Guidelines”) range, and denied Smith’s request for a sentence below the new
15 Guidelines range. We assume the parties’ familiarity with the underlying facts and procedural
16 history of the case.
17 Smith argues on appeal that the district court erred when it denied his request for a sentence
18 below his new Guideline range. The district court correctly denied the request. A district court “may
19 not generally modify a term of imprisonment once it has been imposed.” United States v. McGhee,
20 553 F.3d 225, 225 (2d Cir. 2009) (per curiam) (quoting Cortoreal v. United States, 486 F.3d 742,
21 744 (2d Cir. 2007)(per curiam)). 18 U.S.C. § 3582(c)(2) does give district courts limited authority
22 to reduce a defendant’s term of imprisonment, if that term was based on a Guidelines range that since
23 has been amended and the Sentencing Commission authorized the retroactive application through
24 a policy statement. The district court exercised this authority in reducing Smith’s Guideline range
25 from between 108 to 135 months to between 87 to 108 months. However, Smith’s argument that
26 the district court had the authority to further reduce his sentence is foreclosed by our decision in
27 United States v. Savoy, 567 F.3d 71 (2d Cir. 2009) (per curiam), where we held that “district courts
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1 lack the authority when reducing a sentence pursuant to § 3582(c)(2) to reduce that sentence below
2 the amended Guidelines range where the original sentence fell within the applicable Guidelines
3 range.” Id. at 74.
4 CONCLUSION
5 For the foregoing reasons, the judgment of the district court is AFFIRMED.
6
7 For the Court:
8 Catherine O’Hagan Wolfe, Clerk
9
10 By: __________________________
11
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