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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