United States v. Ganun

United States Court of Appeals
For the First Circuit

No. 08-1416

UNITED STATES,

Appellee,

v.

TIMOTHY J. GANUN, JR.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Timothy Ganun, Jr., on brief pro se.
Renée M. Bunker, Assistant U.S. Attorney, and Paula D. Silsby,
United States Attorney, on brief for appellee.

November 7, 2008
 Per Curiam. Timothy J. Ganun, Jr. pled guilty to one

count of conspiracy to distribute fifty grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.

He was sentenced to the applicable statutory mandatory minimum

sentence of ten years. See id. § 841(b)(1)(A). In January 2008,

Ganun filed a form motion requesting appointment of counsel to

represent him in pursuing a motion for reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2) and the Sentencing Commission's

retroactive amendment of the crack cocaine guideline (Amendments

706, 711 and 713). The district court summarily denied a sentence

reduction on the ground that "because the sentence is required by

statute, the Court may not reduce the sentence pursuant to the

recent amendments." Ganun appeals from that ruling on the ground

that it was prematurely entered before he had the opportunity to

file the motion and memorandum in support, and that the district

court erred in denying the reduction.

Having carefully examined the record and considered the

parties' briefs, we conclude that the district court lacked

authority to grant Ganun his requested sentencing reduction

pursuant to § 3582(c)(2) and the crack cocaine amendment to the

Sentencing Guidelines because he was serving a statutory mandatory

minimum sentence. Section 3582(c)(2) "confers no power on the

district court to reduce a minimum sentence mandated by statute."

United States v. Dimeo, 28 F.3d 240, 241 (1st Cir. 1994). Ganun's

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argument that the concerns that prompted the Sentencing Commission

to lower the base offense level for cocaine base offenses should

also result in reductions in the statutory mandatory minimums

overlooks the fact that the Sentencing Commission is without power

to determine statutory minimums.

Independently, we also note that the application notes to

the applicable policy statements provide that "a reduction in the

defendant's term of imprisonment is not authorized under 18 U.S.C.

§ 3582(c)(2) and is not consistent with this policy statement if:

. . . the amendment does not have the effect of lowering the

defendant's applicable guideline range because of the operation of

[a] . . . statutory provision (e.g., a statutory mandatory minimum

term of imprisonment)." U.S.S.G. § 1B1.10, comment. (n. 1(A)).

We need not decide whether Ganun's argument that he was

denied due process by the district court's premature denial of his

motion has any merit. Having considered all of Ganun's arguments

in support of such reduction, it is clear that Ganun was not

prejudiced by his inability to present those arguments to the

district court.

Affirmed.

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