08-2104-cr
USA v. Jennings
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
7 SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
8 COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
9 OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
10 W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
11 APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING
12 A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
13 PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
14 COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
15 W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
16 AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
17 THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
18 REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
19 ORDER W AS ENTERED.
20
21 At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
22 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
23 on the 11th day of December, two thousand and eight.
24
25 PRESENT: DENNIS JACOBS,
26 Chief Judge,
27 GUIDO CALABRESI,
28 DEBRA ANN LIVINGSTON,
29 Circuit Judges.
30 ___________________________________________________
31
32 UNITED STATES OF AMERICA,
33
34 Appellee,
35
36 -v.- No. 08-2104-cr
37
38 KEITH JENNINGS,
39
40 Defendant-Appellant.
41
42 ___________________________________________________
43
44
-1-
1 Appearing for Appellee: ANDREW T. BAXTER, United States Attorney,
2 Northern District of New York (John. M. Katko and
3 Elizabeth S. Riker, Assistant United States
4 Attorneys, of counsel), Syracuse, N.Y.
5
6 Appearing for Defendant-Appellant: MARSHA R. TAUBENHAUS, New York, N.Y.
7 ___________________________________________________
8
9 UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States
10 District Court for the Northern District of New York (McAvoy, J.), it is hereby ORDERED,
11 ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
12 ___________________________________________________
13 Defendant-Appellant Keith Jennings appeals from a decision and order by the district
14 court for the Northern District of New York (McAvoy, J.) denying his motion for a reduction of
15 his sentence pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the
16 underlying facts, the procedural history of the case, and the issues on appeal.
17 “A district court may not generally modify a term of imprisonment once it has been
18 imposed[,]” but 18 U.S.C. § 3582(c)(2) provides a limited exception that allows a district court
19 to “reduce the term of imprisonment of a defendant who has been sentenced to a term of
20 imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing
21 Commission [(“Commission”)] . . . .” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.
22 2007) (per curiam) (internal quotation marks omitted). In 2007 and 2008, the Commission
23 amended the United States Sentencing Guidelines by reducing the recommended Guidelines
24 sentence for offenses involving cocaine base (collectively, the “crack-cocaine amendments”).
25 See, e.g., U.S.S.G. app. C, amend. 706 (2007), as amended by amend. 711; id. amend. 715
26 (2008). The crack-cocaine amendments were made retroactive, subject to certain conditions. See
-2-
1 U.S.S.G. § 1B1.10. Relying upon these amendments,1 Jennings filed a motion for a reduced
2 sentence under § 3582(c)(2) on February 22, 2008. In an order filed on April 15, 2008, the
3 district court denied the motion after concluding that Jennings was not eligible for relief under
4 the statute.
5 We review de novo a district court’s interpretation of 18 U.S.C. § 3582(c)(2) and the
6 relevant Sentencing Guidelines. See United States v. Main, 579 F.3d 200, 202–03 (2d Cir. 2009).
7 The government argues that the district court properly denied Jennings’s § 3582(c)(2)
8 motion because he was sentenced to a mandatory minimum sentence of life imprisonment under
9 21 U.S.C. § 848(b). Jennings objects that he was convicted under 21 U.S.C. § 848(a), a lesser-
10 included offense that requires a minimum sentence of only 20 years’ imprisonment. He argues
11 that the aggravating elements necessary to sustain a § 848(b) conviction were not found by the
12 jury beyond a reasonable doubt. See United States v. Torres, 901 F.2d 205, 240–41 (2d Cir.
13 1990). We need not decide this issue, however, because Jennings is ineligible for a § 3582(c)(2)
14 sentence reduction on other grounds. The crack-cocaine amendments do not apply to offenses
15 that involve more than 4.5 kg of cocaine base, which is now the highest offense level under
16 U.S.S.G. § 2D1.1. Here, Jennings’s crime of conviction was found to involve 13.6 kg of cocaine
17 base, in addition to 19.0 kg of cocaine and 185.0 kg of marijuana. Because Jennings’s offense
18 involved an amount well above the 4.5 kg threshold, his sentence was not “based on a sentencing
1
Jennings’s motion in the district court was made pursuant to Amendment 706, and the
district court made its decision under that amendment. On appeal, Jennings contends that it is
Amendment 715, rather than Amendment 706, that is applicable to his case because his charged
offenses involved marijuana and powder cocaine in addition to cocaine base. The distinction
between Amendment 706 and 715 is not relevant for the resolution of this appeal. Jennings is
not eligible for relief under either amendment, and for the same reason.
-3-
1 range that has subsequently been lowered” by the Sentencing Commission, and so § 3582(c)(2)
2 does not apply to him.
3 We have considered all of Appellant’s remaining arguments and found them to be
4 without merit. Accordingly, we AFFIRM the judgment of the district court.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9 By: _________________________
10
-4-