United States Court of Appeals
For the First Circuit
No. 06-1679
UNITED STATES,
Appellee,
v.
HÉCTOR RODRÍGUEZ-PEÑA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Héctor Rodríguez-Peña on brief pro se.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Jacqueline D.
Novas, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Velez,
United States Attorney, on brief for appellee.
December 11, 2006
Per Curiam. Defendant Héctor Rodríguez-Peña, having been
convicted of multiple criminal offenses back in 1993, appeals from
the denial of his motion for reduction of sentence under 18 U.S.C.
§ 3582(c). It being clear that no such relief is warranted, we
summarily affirm.
In relevant part, § 3582(c) provides that, where a
defendant was sentenced “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,” the
district court may reduce that sentence “if such a reduction is
consistent with applicable policy statements issued by the ...
Commission.” 18 U.S.C. § 3582(c)(2). A denial of § 3582(c) relief
is reviewed for abuse of discretion. See, e.g., United States v.
Hurley, 374 F.3d 38, 41 (1st Cir. 2004) (per curiam).
Defendant advances three separate justifications for a
sentence reduction. First, he points to Amendment 500 to the
sentencing guidelines, which involved “role in the offense”
calculations. The amendment added an application note to U.S.S.G.
§ 3B1.1 (the “aggravating role” provision) stating that an upward
adjustment is appropriate only if the defendant managed “one or
more other participants”; exercising “management responsibility
over the property, assets, or activities of a criminal
organization” is not enough. The Commission did not include
Amendment 500 among those listed in U.S.S.G. § 1B1.10(c) as
eligible for retroactive application. We note, in passing, that
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the amendment took effect in 1993 and that defendant provides no
explanation for his over-twelve-year delay in invoking same.
Defendant’s argument rests on three assertions: (1) that
Amendment 500 is “clarifying” rather than “substantive”; (2) that
the amendment, for that reason, can be applied retroactively to
obtain § 3582(c) relief despite its omission from § 1B1.10(c); and
(3) that doing so here would result in a lower sentence. There is
no need to address the first two propositions, since the final one
is plainly incorrect: the record makes clear that defendant managed
one or more other participants. The presentence report (PSR), for
example, states in pertinent part as follows:
On June 1, 1992, the defendant instructed
codefendant Victor Rivera to acquire a vehicle
to transport the drug cargo and furnished the
undercover agent with such a vehicle. Under
his instructions codefendant Angel Galindez
delivered to the undercover agent $30,000.00
in exchange for the keys and location of the
truck containing the marijuana load.
(Emphasis added.) Indeed, the PSR explains that, upon the arrest
of a key operative, defendant “agreed to continue in charge of the
drug smuggling operation”–-a point echoed in our opinion on direct
appeal. See United States v. Rodríguez-Peña, 1995 WL 275691, at *1
(1st Cir. 1995) (unpublished). Moreover, the interpretation of §
3B1.1 adopted by Amendment 500 was the one already prevailing in
this circuit; the amendment specifically identified United States
v. Fuller, 897 F.2d 1217 (1st Cir. 1990), as one of the cases
supporting the view it was endorsing. There is no indication that
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the sentencing judge deviated from this precedent (a matter that
could have been-–but was not--raised on direct appeal).
Accordingly, application of Amendment 500 would not change
defendant’s sentence.
Second, defendant contends that a § 3582(c) reduction is
warranted in the wake of United States v. Booker, 543 U.S. 220
(2005), on the theory that that decision “clarified” the
guidelines. This argument has been roundly rejected. See, e.g.,
United States v. Price, 438 F.3d 1005, 1007 n.2 (10th Cir.) (citing
cases), cert. denied, 126 S. Ct. 2365 (2006); United States v.
Moreno, 421 F.3d 1217, 1220-21 (11th Cir. 2005) (per curiam), cert.
denied, 126 S. Ct. 1643 (2006). Among other flaws, it overlooks
the fact that § 3582(c) only allows a reduction where “the
Sentencing Commission, not the Supreme Court, has lowered the
[sentencing] range.” Price, 438 F.3d at 1007. Moreover, because
defendant already has been denied relief under 28 U.S.C. § 2255,
such an argument, if successful, would improperly bypass the
second-or-successive regimen prescribed by § 2255 ¶ 8.
Finally, defendant seeks a sentence reduction because of
his extensive post-judgment rehabilitation. Yet such conduct,
while commendable, has nothing to do with the lowering of the
sentencing range by the Commission, as required by § 3582(c).
Accordingly, such rehabilitation provides no basis either for a
sentencing reduction in its own right, see, e.g., Quesada-Mosquera
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v. United States, 243 F.3d 685, 686 (2d Cir. 2001), or for a
further downward departure where a § 3582(c) reduction is ordered
for some other reason, see, e.g., United States v. Hasan, 245 F.3d
682 (8th Cir. 2001) (en banc); cf. United States v. Jordan, 162 F.3d
1 (1st Cir. 1998).
Defendant also faults the district court for failing to
explain the basis for its § 3582(c) denial. This complaint falls
short, inasmuch as defendant’s ineligibility for such relief is
self-evident. See generally Witty v. Dukakis, 3 F.3d 517, 521 (1st
Cir. 1993) (finding no need for district court explanation when
reason for ruling is “apparent on the face of the record”). In any
event, this court “can affirm on any basis available in the
record.” Peguero-Moronta v. Santiago, 464 F.3d 29, 34 (1st Cir.
2006).
Affirmed.
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