17-821 US v. Harris

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 13 th day of February, two thousand eighteen. 3

4 Present: ROSEMARY S. POOLER, 5 ROBERT D. SACK, 6 SUSAN L. CARNEY, 7 Circuit Judges

. 8

_____________________________________________________ 9

10 UNITED STATES OF AMERICA, 11

12 Appellee

, 13

14 v. 17-821 15

16 MENDEECEES HARRIS, AKA One, AKA Uno, 1 17

18 Defendant-Appellant

. 19

_____________________________________________________ 20

21 Appearing for Appellant: Angel Castro (Dawn M. Florio, on the brief ), New York, N.Y. 22

23 Appearing for Appellee: Monica J. Rich ards, Assistant United States Attorney, for James P. 24 Kennedy, Acting United States Atto rney, Western District of New 25 York, Buffalo, N.Y. 26

27 Appeal from the United States District C ourt for the Western District of New York 28 (Geraci, C.J. ). 29

1 The Clerk is directed to amend the caption as above.2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 1 AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

. 2

3 Appellant Mendeecees Harris appeals from the March 9, 2017 decision and order of the 4 United States District Court for the We stern District of New York (Geraci, C.J. ), denying his 5 application for a reduction in sentence pursu ant to 18 U.S.C. § 3582(c)(2). We assume the 6 parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for 7 review. 8

9 Harris argues that he should receive a re duced sentence under Section 3582 in light of 10 Amendment 794 to the Sentencing Guidelines, wh ich revised the commentary regarding the 11 method to be employed in awarding role adjustme nts. Harris was sentenced pursuant to a plea 12 agreement, the terms of which specifically pr ovided that he would not receive any role 13 adjustment—either upwards or downwards. “When the issue on appeal is whether a defendant is 14 ‘eligible for a reduction in sentence under [S entencing Guidelines] amendments, pursuant to 15 section 3582(c)(2), we review de novo the determination of whether the defendant’s sentence 16 was based on a sentencing range that was s ubsequently lowered by the Sentencing Commission, 17 because this determination is a ma tter of statutory interpretation.’” United States v. Christie , 736 18 F.3d 191, 195 (2d Cir. 2013) (quoting United States v. Main , 579 F.3d 200, 202-03 (2d Cir. 19 2009)). “When a defendant is eligib le for resentencing, ‘we review a district court’s decision to 20 deny a motion under 18 U.S.C. § 3582( c)(2) for abuse of discretion.’” Id. (quoting United States 21 v. Borden , 564 F.3d 100, 104 (2d Cir. 2009)). 22

23 We agree with the district court that Harris is not eligible for S ection 3582 relief as a 24 result of Amendment 794. “Although district co urts generally may not modify a term of 25 imprisonment once it has been imposed, if the defendant ‘has been se ntenced to a term of 26 imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing 27 Commission ... the court may reduce the term of imprisonment ... if such a reduction is 28 consistent with applicable policy statem ents issued by the Sentencing Commission.’” Id. at 194 29 (quoting 18 U.S.C. § 3582(c)(2)). Amendment 794 was in effect at the time of Harris’s 30 sentencing. Thus his Guidelines range is not one that “has subsequently been lowered,” as 31 Section 3582 requires. 18 U.S.C. § 3582(c)(2) (emphasis added). 32

33 Further, Sentencing Guidelines amendments will create eligibility for Section 3582 relief 34 only where they are listed as retroa ctive at U.S.S.G. § 1B1.10(d). Dillon v. United States , 560 35 U.S. 817, 827 (2010) (noting that Section 3582 reli ef is available for “only the amendments 36 listed in subsection” 1B1.10(d) 2 ); see also United States v. Derry , 824 F.3d 299, 303 (2d Cir. 37 2016), cert. denied , 137 S. Ct. 316 (2016) (finding that sentence modification relief under 38 Section 3582 is only available where the Guidelines range “has subsequen tly been lowered as a 39 result of an amendment to the Guidelines Ma nual listed in su bsection [1B1.10](d)”). Amendment 40 794 is not so listed. See U.S.S.G. § 1B1.10(d). As a result, Amendment 794 does not provide a 41 basis for relief on a Section 3582 motion. 42

43

2 At the time of Dillon , the subsection was § 1B1.10(c), but it has since been amended, and the applicable list provision is now subsection (d).3 Harris argues that we should overlook the fact that Amendment 794 is not listed as 1 retroactive, because the amendment is clarifying rather than substantive. See United States v. 2 Quintero-Leyva , 823 F.3d 519, 523 (9th Cir. 2016). However, the ‘clarification’ inquiry applies 3 where a defendant seeks senten cing modification on direct app eal, or is sentenced under a 4 particular version of the Guidelin es for reasons not present here, such as ex post facto concerns. 5 See U.S.S.G. § 1B1.11(b)(2) (“[I]f a court applies an earlier edition of the Guidelines Manual, 6 the court shall consider subse quent amendments, to the extent that such amendments are 7 clarifying rather than substantive changes.”); see also United States v. Sabbeth , 277 F.3d 94, 96 8 (2d Cir. 2002) (“[A] defendant sentenced under one version of the Guidelines may be given the 9 benefit of a later revisi on if the revision represents not a substantive change but merely a 10 clarification of the Unite d States Sentencing Commi ssion’s prior intent.”); United States v. 11 Brooks , 732 F.3d 148, 149 (2d Cir. 2013). On a S ection 3582 motion, however, the statutory 12 authorization to modify a sentence is “narro w,” and, accordingly, we may look to “only the 13 amendments listed in subsection” § 1B 1.10 (d) to provide a basis for relief. Dillon , 560 U.S. at 14 827; see also United States v. Perez , 129 F.3d 255, 259 (2d Cir. 1997) (“§ 3582 is inapplicable” 15 when an “amendment is not listed” at U.S.S.G. § 1B1.10(d)), which “governs the retroactivity of 16 Guideline amendments and specifies which amendments a defendant may invoke pursuant to 17 § 3582(c)(2)”). Accordingly, the cl arification analysis Harris s uggests is not relevant to the 18 determination of whether Harris is eligible for Section 3582 relief. 19

20 We have considered the remainder of Harri s’s arguments and find them to be without 21 merit. Accordingly, the order of the district c ourt hereby is AFFIRMED. E ach side to bear its 22

own costs. 23

24

25 FOR THE COURT: 26 Catherine O’Hagan Wolfe, Clerk 27

28