15-3809
United States v. Clark
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 3rd day of February, two thousand seventeen.
5
6 PRESENT: DENNIS JACOBS,
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-3809
16
17 EDDIE LAMONT CLARK,
18 Defendant-Appellant.
19
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: BARCLAY T. JOHNSON, Office of the
23 Federal Public Defender, District
24 of Vermont, Burlington, VT.
25
26 FOR APPELLEE: BARBARA A. MASTERSON (Gregory L.
27 Waples, on the brief), Assistant
1
1 United States Attorney, for Eric
2 S. Miller, United States Attorney
3 for the District of Vermont,
4 Burlington, VT.
5
6 Appeal from a judgment of the United States District Court
7 for the District of Vermont (Murtha, J.).
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
9 DECREED that the judgment of the district court be AFFIRMED.
10 Eddie Lamont Clark appeals from the judgment of the United
11 States District Court for the District of Vermont (Murtha, J.)
12 denying Clark’s motion for a reduced sentence pursuant to 18
13 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with
14 the underlying facts, the procedural history, and the issues
15 presented for review.
16 Clark was convicted of conspiracy to distribute cocaine.
17 At sentencing, relying on the 2009 edition of the United States
18 Sentencing Guidelines, the district court calculated Clark’s
19 Guidelines range to be 210-262 months’ imprisonment. Pursuant
20 to a plea agreement, the district court principally sentenced
21 Clark to 144 months’ imprisonment.
22 Once Amendment 782 to the United States Sentencing
23 Guidelines (which reduced offense levels for certain drug
24 offenses by two levels) was made retroactive, Clark moved to
25 reduce his sentence to 120 months’ imprisonment, the mandatory
26 minimum sentence under the statute, to reflect a reduction
27 comparably less than the amended Guidelines range, as permitted
28 by § 1B1.10 of the Guidelines. The district court denied his
29 motion. The district court calculated his amended Guidelines
30 range to be 168-210 months’ imprisonment; based on the current
31 version of § 1B1.10, which prohibits a sentence reduction to
32 “a term that is less than the minimum of the amended guideline
33 range” except in certain cases where a defendant has provided
34 substantial assistance to the government, the district court
35 concluded that Clark was ineligible for a sentence reduction
36 because his sentence of 144 months’ imprisonment fell below the
37 amended Guidelines range. The district court also rejected
38 Clark’s contention that the current version of § 1B1.10, which
2
1 took effect after his sentencing, violates the Ex Post Facto
2 Clause.
3 1. A court may reduce a defendant’s sentence if he has been
4 “sentenced to a term of imprisonment based on a sentencing range
5 that has subsequently been lowered by the Sentencing
6 Commission,” and “if such a reduction is consistent with
7 applicable policy statements issued by the Sentencing
8 Commission.” 18 U.S.C. § 3582(c)(2); see also Dillon v. United
9 States, 560 U.S. 817, 819 (2010).
10 The Sentencing Commission’s § 1B1.10 policy statement
11 prohibited the district court from granting Clark a sentence
12 reduction below 168 months’ imprisonment because that was the
13 minimum of his amended Guidelines range. The district court
14 correctly found Clark ineligible for a sentence reduction.
15 2. The Ex Post Facto Clause prohibits “the imposition of
16 punishment more severe than the punishment assigned by law when
17 the act to be punished occurred.” Weaver v. Graham, 450 U.S.
18 24, 30 (1981). A particular change in law violates the Ex Post
19 Facto Clause if it “presents a sufficient risk of increasing
20 the measure of punishment attached to the covered crimes.”
21 Peugh v. United States, 133 S. Ct. 2072, 2082 (2013) (internal
22 quotation marks omitted).
23 The fact that § 1B1.10 was revised after Clark’s sentencing
24 to restrict eligibility for a sentence reduction authorized by
25 a later Guidelines amendment does not violate the Ex Post Facto
26 Clause because, as we recently held, it does not present a risk
27 of increasing his, or any other defendant’s, punishment.
28 United States v. Ramirez, -- F.3d --, 2017 U.S. App. LEXIS 1297,
29 at *19-20, 2017 WL 359652, at *6-7 (2d Cir. Jan. 25, 2017).
30 Accordingly, and finding no merit in Clark’s other
31 arguments, we hereby AFFIRM the judgment of the district court.
32 FOR THE COURT:
33 CATHERINE O’HAGAN WOLFE, CLERK
3