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holding that the district court in that case correctly concluded that it could not modify a defendant's statutory mandatory minimum sentence under § 3582(c)
Summary of this case from United States v. SanchezOpinion
No. 09-2509-cr.
October 15, 2010.
Appeal from a judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge).
UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Stephanie M. Carvlin, New York, NY, for Defendant-Appellant.
Paul D. Silver, Assistant United States Attorney for the Northern District of New York (Richard S. Hartunian, United States Attorney, on the brief, Grant C. Jaquith, of counsel), Albany, NY, for Government-Appellee.
PRESENT: WALKER, JOSÉ A. CABRANES, CHESTER J. STRAUB, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Marvin Henderson ("defendant") appeals from the June 5, 2009 final order of the United States District Court for the Northern District of New York denying his motion for resentencing pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties' familiarity with the facts and procedural history of this action.
Section 3582(c)(2) reads, in relevant part:
[A district court] may not modify a term of imprisonment once it has been imposed except . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), [or] upon motion of the defendant . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c).
We review a question of statutory interpretation de novo. See United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009).
"A district court may not generally modify a term of imprisonment once it has been imposed." Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007). An exception is available, however, under § 3582(c)(2), when the Sentencing Commission amends the United States Sentencing Guidelines. "Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010); see also U.S.S.G. § 1B1.10(a)(3) ("[P]roceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant."). In determining whether an amended guideline range would have been applicable to the defendant if the amendment had been in effect at the time of sentencing, "the court shall substitute only the amendments [listed in U.S.S.G. § 1B1.10(c)] for the corresponding guide-line provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." U.S.S.G. § 1B1.10(b)(1).
Under Section 994(o), "[t]he [Sentencing] Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines." 28 U.S.C. § 994(o).
District courts are constrained in their ability to modify a sentence under § 3582(c)(2) if the court has imposed a statutory mandatory minimum sentence. See Williams, 551 F.3d at 186 (noting that the Sentencing Commission's policy statement prohibits sentence reductions if the amendment "`does not have the effect of lowering the defendant's applicable guide-line range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)'" (quoting U.S.S.G. § 1B1.10, application note 1, subsection 1(a) (emphasis added))). The District Court correctly concluded that, under Williams, it could not modify defendant's sentence under § 3582(c)(2) following the 2007 amendments of the crack-cocaine sentencing guidelines, because it had imposed a statutory mandatory minimum sentence.
We also reject defendant's claim that his statutory mandatory minimum sentence can be modified under § 3582(c)(2) following the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). It is clear that the rule of Apprendi is not an amendment promulgated by the Sentencing Commission and thus cannot be considered an amendment for § 3582(c)(2) purposes. If we allowed a § 3582 motion for sentence reduction on Apprendi grounds, we would violate the letter and spirit of the statute. This judgment is consistent with United States v. Mock, 612 F.3d 133 (2d Cir. 2010), in which we held that § 3582(c)(2) does not provide a basis for this Court or a district court to hear a claim that procedural error occurred at a defendant's original sentencing. It is also consistent with the judgment of all other Courts of Appeals that have reached this issue with regard to an Apprendi challenge. See United States v. Lafayette, 585 F.3d 435, 439 (D.C. Cir. 2009) ("[T]he proper vehicle for [defendant's] . . . Apprendi arguments is a petition under 28 U.S.C. § 2255."); United States v. Paulk, 569 F.3d 1094, 1096 (9th Cir. 2009) ("[W]e . . . reject [defendant's] argument that the mandatory minimum could be avoided on resentencing [pursuant to § 3582(c)(2)] due to the operation of [ Apprendi]."); United States v. McBride, 283 F.3d 612, 616 (3d Cir. 2002) (finding that defendant's " Apprendi argument was independent of and unrelated to any change in the Guidelines and was, therefore, outside the scope of a sentence modification under § 3582"); United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (observing that defendant's Apprendi challenge is "not authorized by § 3582(c), for it is unrelated to any change in the Sentencing Guidelines").
CONCLUSION
The judgment of the District Court as to all claims is AFFIRMED.