Opinion
15-3544
09-27-2016
United States of America, Appellee, v. Isiah Smith, Appellant.
FOR APPELLANT: BARCLAY T. JOHNSON, Research and Writing Attorney, for Michael L. Desautels, Federal Public Defender, District of Vermont. FOR APPELLEE: BARBARA A. MASTERSON, GREGORY L. WAPLES, Assistant United States Attorneys, for Eric S. Miller, United States Attorney for the District of Vermont.
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 'SUMMARY ORDER'). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of September, two thousand sixteen. PRESENT: DENNIS JACOBS, DEBRA A. LIVINGSTON, Circuit Judges , JED S. RAKOFF, District Judge.
The Honorable Jed S. Rakoff, Judge for the United States District Court for the Southern District of New York, sitting by designation.
FOR APPELLANT:
BARCLAY T. JOHNSON, Research and Writing Attorney, for Michael L. Desautels, Federal Public Defender, District of Vermont.
FOR APPELLEE:
BARBARA A. MASTERSON, GREGORY L. WAPLES, Assistant United States Attorneys, for Eric S. Miller, United States Attorney for the District of Vermont.
Appeal from a final order of the United States District Court for the District of Vermont (Sessions, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the final order of the district court be AFFIRMED.
Isiah Smith pleaded guilty to one count of conspiracy to distribute heroin and 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He was sentenced to 78 months of imprisonment on June 4, 2012.
On January 6, 2015, Smith filed a pro se motion for a reduction in sentence based on Amendment 782 to the U.S. Sentencing Guidelines. The district court (Sessions, J.) denied the motion on the ground that his sentence was already shorter than the bottom of the Guidelines range that would result from the two-level reduction, and that further reduction is barred by section 1B1.10 of the Sentencing Guidelines, which governs the retroactive reduction of sentences and forbids any reduction that is "less than the minimum of the amended guidelines range." U.S.S.G. § 1B1.10(b)(2)(A). And though the Sentencing Guidelines are now advisory at original sentencing, see Booker v. United States, 543 U.S. 220 (2005), the Supreme Court has held that they are mandatory in the context of resentencing pursuant to 18 U.S.C. § 3582(c)(2). See Dillon v. United States, 560 U.S. 817 (2010).
Smith appeals from the denial of his motion for a sentence reduction, arguing that the section 1B1.10 prohibition on reductions that result in sentences below the amended guidelines range exceeds the Sentencing Commission's statutory authority and violates the separation of powers. He acknowledges that our precedent defeats his argument, citing United States v. Montanez, 717 F. 3d 287 (2d Cir. 2013); United States v. Erksine, 717 F. 3d 131 (2d Cir. 2013); and United States v. Steele, 714 F. 3d 751 (2d Cir. 2013). But he appeals nevertheless to preserve his claim for further review. As he anticipates, we adhere (as we must) to the decisions he cites.
Accordingly, we hereby AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK