16-4322-cr

US v. Ortiz-Rosa

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 ELECTRON IC 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2
10 th day of April, two thousand eighteen. 3

4 Present: ROSEMARY S. POOLER, 5 REENA RAGGI, 6
CHRISTOPHER F. DRONEY 7 Circuit Judges

. 8

_____________________________________________________ 9

10 UNITED STATES OF AMERICA, 11

12 Appellee

, 13

14
v. 16-4322-cr 15

16 RICARDO ORTIZ-ROSA, 17

18 Defendant-Appellant

. 1 19

_____________________________________________________ 20

21 Appearing for Appellant: Lucas Anderson, Rothman, Schneider, Soloway & Stern, LLP, 22 New York, N.Y. 23

24 Appearing for Appellee: Monica J. Rich ards, Assistant United States Attorney for James P. 25 Kennedy, Jr., Acting United Stat es Attorney for the Western 26
District of New Yo rk, Buffalo, N.Y. 27

28

29

1 The Clerk of the Court is direct ed to amend the caption as above.2 Appeal from the United States District Court for the Western District of New York (Skretny, J. ). 1

2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the decision and order of said District Court be and it hereby is 4 VACATED and REMANDED

. 5

6 Defendant-Appellant Ricardo Ortiz-Rosa appeals from the December 9, 2016 decision 7 and order of the United States District Court for the Western District of New York (Skretny, J. ) 8 denying Ortiz-Rosa’s motion for reconsideration of the district court’s denial of his second 9 motion to reduce his sentence pursuant to 18 U.S.C. § 3582. We assume the parties’ familiarity 10 with the underlying facts, pr ocedural history, and specifica tion of issues for review. 11

12 “Where, as here, a defendant seeks a senten ce reduction based on a retroactive Guidelines 13 amendment, a district court must determine (1) whether the defendant is eligible for a reduction 14 pursuant to 18 U.S.C. § 3582(c)(2), and (2) whet her a reduction is warranted in light of the 15 factors listed in 18 U.S.C. § 3553(a).” United States v. Leonard , 844 F.3d 102, 106-07 (2d Cir. 16 2016) (citing Dillon v. United States , 560 U.S. 817, 826 (2010)). “Because the initial eligibility 17 question ... depends on statutory interpretation, our review is de novo .” Id. at 107 (citing United 18 States v. Williams , 551 F.3d 182, 185 (2d Cir. 2009)). 19

20 Ortiz-Rosa contends that he is eligible for sentencing modification pursuant to Section 21 3582, in light of Amendment 782 to the United States Sentencing Guidelines, made retroactive 22 by Amendment 788, which lowered the applicable Guidelines calculat ions for most drug 23
offenders. This is the second time Ortiz-Rosa ma kes this argument. On his first Section 3582 24 motion, the district court found him ineligible fo r a sentence reduction based on its interpretation 25 of the Supreme Court’s decision in Freeman v. United States , 564 U.S. 522 (2011). On February 26 9, 2016, Ortiz-Rosa appealed the district court’ s sentence reduction de nial, but on July 12, 2016, 27 stipulated to dismissal of th at appeal with prejudice. 28

29 Five months later, on December 14, 2016, this Court decided Leonard , which discussed 30
Freeman’s effect on Section 3582 eligibility. Based on Freeman and Leonard , this Court 31
concluded that Ortiz-Rosa’s co-defendant was eligible for a Section 3582 reduction. See United 32 States v. Areizaga-Rosa , 677 F. App’x 15 (2d Cir. 2017). 33

34 In denying Ortiz-Rosa’s second Section 3582 mo tion, the district court did not consider 35 the merits of that petition. Instead, it stated that this Court had upheld the determination that 36 Ortiz-Rosa was ineligible for S ection 3582 relief on Ortiz-Rosa’s a ppeal from the denial of his 37 first motion. This was incorrect. In ordering dismi ssal pursuant to the part ies’ stipulation, this 38
Court did not reach the merits of Ortiz-Rosa’s eligibility. 39

40 The government does not contend otherwise. Instead, it contends that Ortiz-Rosa is 41 barred by res judicata from pursuing a s econd Section 3582 motion based on the same 42 Guidelines amendments. The government had no opportunity to presen t this res judicata 43 argument below because the district court sua sponte dismissed thirteen days after filing based 44 on its misconstruction of the appellate ruling. 45

463 We do not here decide whether res judicata is properly invoked in these circumstances to 1 bar a second Section 3582 petition. “It is a well-establis hed general rule that an appellate court 2
will not consider an issue raised for the first time on appeal.” United States ex rel. Keshner v. 3 Nursing Personnel Home Care , 794 F.3d 232, 234 (2d Cir. 2015) (quoting Greene v. United 4
States , 13 F.3d 577, 586 (2d Cir. 1994)) (brackets omitted). Nor do we decide whether a 5 stipulated dismissal of an appeal of the denial of such a petition based on ineligibility precludes a 6 defendant from pursuing a second Section 3582 moti on in the particular circumstances of this 7 case. We conclude only that the district court’s denial of Or tiz-Rosa’s second motion must be 8 vacated because it rests on a misapprehension that this Court reached the merits of Ortiz-Rosa’s 9 first appeal. We remand for the district court to reconsider Ortiz-Ro sa’s second Section 3582 10 motion in light of the fact that our dismissal order, although with prej udice, expressed no view 11 on the merits. All parties should be afford ed an opportunity to be heard. 12

13 Accordingly, the order of the district court regarding Ortiz-Rosa’s eligibility for Section 14 3582 relief hereby is VACATED and the case is RE MANDED for further proceedings consistent 15
with this order. 16

17
FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19

20