United States Court of Appeals
For the First Circuit
No. 08-1321
UNITED STATES OF AMERICA,
Appellee,
v.
FELIPE AYALA-PIZARRO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom Thomas P. Colantuono, United States Attorney, was on
brief, for appellee.
December 23, 2008
SELYA, Circuit Judge. By amendment, the United States
Sentencing Commission lowered the offense levels associated with
crack cocaine offenses. See USSG App. C, Amend. 706 (2007). The
Commission thereafter issued a declaration of retroactivity with
respect to those lowered offense levels. See USSG App. C, Amend.
713 (Supp. May 1, 2008). Focusing on Amendment 706, defendant-
appellant Felipe Ayala-Pizarro moved for a reduction of his
previously imposed sentence pursuant to 18 U.S.C. § 3582(c)(2).1
The district court found that it lacked authority to reduce the
sentence, and Ayala-Pizarro appeals.
Because Ayala-Pizarro's single-issue appeal poses a
question substantially identical to that posed in a second,
unrelated case, United States v. Caraballo, we consolidated the two
appeals for oral argument. We heard argument on November 5, 2008.
We elected, however, to issue separate opinions in the two cases.
The opinion in Caraballo issued on December 22, 2008.
See United States v. Caraballo, ___ F.3d ___ (1st Cir. 2008) [No.
08-1555]. In that decision, we held that if an amended guideline
does not have the effect of lowering the sentencing range actually
used at sentencing, the defendant's sentence cannot be deemed to
1
Ayala-Pizarro filed his motion on January 28, 2008, even
though the Sentencing Commission's declaration of retroactivity was
not effective until March 3, 2008. Nevertheless, the order denying
the motion was not entered on the district court docket until May
12, 2008. Under the circumstances, we regard the premature filing
of the motion as inconsequential.
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have been "based on" that range within the intendment of section
3582(c)(2). Id. at ___ [slip op. at 9]. Thus, because Caraballo
was sentenced as a career offender rather than as a crack cocaine
offender, id. at ___ [slip op. at 11], Amendment 706 did not pave
the way for a sentence reduction even though his underlying
offenses were crack cocaine offenses. See id. at ___ [slip op. at
11].
Ayala-Pizarro, who was charged with crack cocaine
offenses but was sentenced as a career offender, is situated the
same as Caraballo in all material respects. Accordingly, this case
is controlled by our decision in Caraballo.
To be sure, there are two arguable differences between
the cases. To avoid any misunderstanding, we briefly address them.
First, the original sentencing in Caraballo took place
under an advisory guidelines regime, that is, after the Supreme
Court's decision in United States v. Booker, 543 U.S. 220, 245-46
(2005), whereas the original sentencing in Ayala-Pizarro took place
under a mandatory, pre-Booker guidelines regime. But as we made
pellucid in Caraballo, Booker has no effect on whether a career
offender's sentence not "based on" a lowered sentencing range for
an underlying offense opens the gate for a sentence reduction under
section 3582(c)(2). See Caraballo, ___ F.3d at ___ [slip op. at 9-
10].
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Second, Caraballo received a non-guideline sentence
predicated primarily on his deteriorating health. Id. at ___ [slip
op. at 11-12]. In contrast, Ayala-Pizarro received a within-the-
range sentence. We fail to grasp how this difference works any
meaningful distinction between the two cases with respect to the
availability of a sentence reduction under section 3582(c)(2).
We need go no further. The appellant's argument in this
case is, for all practical purposes, congruent with Caraballo's
argument: that he was originally sentenced based on a sentencing
range that was lowered by the retroactive crack cocaine amendment
to the drug quantity table. Here, as in Caraballo, the drug type
was alluded to in the course of constructing the defendant's
sentence but, ultimately, the sentence actually imposed was based
on a sentencing range derived from the career offender guideline.
It follows inexorably that, for the reasons elucidated in
Caraballo, we must reject Ayala-Pizarro's appeal.
Affirmed.
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