Opinion
No. 06-2843-cr.
November 19, 2007.
Appeal from an order of the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.
Appearing for Appellant: Joseph W. Martini, Wiggin and Dana LLP, New Haven, CT.
Appearing for Appellee: Kevin J. O'Connor, United States Attorney for the District of Connecticut, H. Gordon Hall and William J. Nardini, Assistant United States Attorneys, New Haven, CT.
PRESENT: HON. ROBERT D. SACK, HON. PETER W. HALL, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Defendant-appellant Rodney Brandy appeals from an order, entered June 6, 2006, denying his request for resentencing. Brandy pleaded guilty to conspiracy to possess with intent to distribute 50 grams or more of cocaine base ("crack"), in violation of 21 U.S.C. § 846. On October 22, 2003, the district court imposed a sentence at the low end of the United States Sentencing Guidelines range, principally 108 months' imprisonment. On remand pursuant to United States v. Booker, 543 U.S. 220 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the district court considered the sentencing factors listed in 18 U.S.C. § 3553(a) and determined that Brandy's sentence would have been no different had the Guidelines been advisory at the time it was initially imposed.
We assume the parties' and counsel's familiarity with the underlying facts and procedural history of the case.
On appeal, the defendant argues that his sentence is substantively unreasonable because the application of the 100-to-28 1 crack-powder cocaine ratio resulted in a "greater than necessary" sentence, given the defendant's military service, education, and lack of prior criminal history.
Upon review of the record, we conclude that Brandy's sentence is substantively reasonable. At both the original sentencing and on Brandy's request for resentencing, the district court fully considered Brandy's personal circumstances and the purposes of the sentence and determined that the Guidelines sentence was appropriate. The district court also concluded that nothing specific to Brandy's case made application of the 100-to-1 ratio unfair. The sentence imposed, 108 months, "was well within the broad range of reasonable sentences that the District Court could have imposed in the circumstances presented." United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006), cert. denied, 127 S. Ct. 192 (2006).
We note that the base offense levels for some crack offenses were reduced by amendment to the Guidelines that became effective on November 1, 2007. See U.S.S.G. § 2D1.1(c) (2007). Should the Sentencing Commission determine that the amendment is to be given retroactive effect, see id. § 1B1.10, the district court will have jurisdiction to decide in the first instance whether to modify Brandy's sentence accordingly. 18 U.S.C. § 3582(c)(2); United States v. Colon, 961 F.2d 41, 45-46 (2d Cir. 1992). Our resolution of this appeal is without prejudice to Brandy's ability to move for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.