12-1594-cr United States v. Myers **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Thurgood Marshall United 2 States Courthouse, 40 Foley Square, in the City of New York, 3 on the 14 thday of May, two thousand thirteen. 4 5 PRESENT: ROBERT D. SACK, 6 RICHARD C. WESLEY, 7 SUSAN L. CARNEY, 8 Circuit Judges

. 9 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 -v.- No. 12-1594-cr 17 18 SHANE D. MYERS, 19 20 Defendant-Appellant, 21 22 MARVIN E. HENDERSON, OLANJE J. CARPENTER, 23 ANTHONY HENDERSON, DORIAN C. HOWARD, JR., 24 CARL J. MARSHALL, III, MICHAEL A. 25 NEMBHARD, 26 27 Defendants. 28 29 30 FOR APPELLANT: Ryan Thomas Truskoski, Harwinton, CT. 31 32 33FOR APPELLEES: Rajit S. Dosanjh, Assistant United States 1 Attorney (Grant Jaquith, Assistant United 2 States Attorney, on the brief ), for 3 Richard S. Hartunian, United States 4 Attorney for the Northern District of New 5 York. 6 7 Appeal from the United States District Court for the 8 Northern District of New York (Mordue, J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11
**AND DECREED**that the order is **AFFIRMED**
. 12 Defendant-appellant Shane D. Myers appeals from the 13 April 11, 2012 denial of his motion for sentence reduction 14 pursuant to 18 U.S.C. § 3582(c)(2) and from the district 15 court’s refusal to appoint him counsel. We review the issue 16 of whether Myers’s “original sentence was based on a 17 sentencing range that was subsequently lowered by the 18 Sentencing Commission” de novo , because “[t]he underpinning 19 of the district court’s ruling [was] statutory 20 interpretation.” United States v. Williams , 551 F.3d 182, 21 185 (2d Cir. 2009). We review the district court’s decision 22 regarding appointment of counsel for abuse of discretion. 23 United States v. Reddick , 53 F.3d 462, 465 (2d Cir. 1995). 24 We assume the parties’ familiarity with the facts and 25 procedural history. 26
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2In 1998, Myers received a sentence of 240 months, the 1 statutory mandatory minimum at the time for his conviction 2 for crack cocaine offenses under 21 U.S.C. § 841(b)(1)(A). 3 In 2011, he moved for reduction of his sentence pursuant to 4 18 U.S.C. § 3582(c)(2), which provides that a court may 5 modify a sentence “in the case of a defendant who has been 6 sentenced to a term of imprisonment based on a sentencing 7 range that has subsequently been lowered by the Sentencing 8 Commission.” The district court denied Myers’s motion, 9 stating that he was “not eligible for a reduction as he was 10 sentenced at the statutory mandatory minimum sentence.” 11 Joint App’x 71. 12 Myers argues that United States v. Booker , 543 U.S. 220 13 (2005), allows a district court to employ the sentencing 14 factors described in 18 U.S.C. § 3553(a) to sentence a 15 defendant below a mandatory minimum. We have held, however, 16 that “the general sentencing provisions in § 3553(a) give 17 way to specificmandatory sentencing provisions elsewhere in 18 the criminal code.” United States v. Carter , 696 F.3d 229, 19 232 (2d Cir. 2012) (emphasis in original). We have also 20 held that “[o]nce the mandatory minimum applie[s],” a 21 defendant’s sentence is “no longer ‘based on a sentencing 22

3range that has subsequently been lowered by the Sentencing 1 Commission,’” Williams , 551 F.3d at 185 (quoting 18 U.S.C. § 2 3582(c)(2)), because the statute, rather than the Guidelines 3 alone, determines the length of the sentence. We therefore 4 affirm the district court’s denial of Myers’s § 3582(c)(2) 5 motion. 6 With regard to Myers’s request for appointment of 7 counsel, we have held that a defendant does not have a right 8 to counsel under the Sixth Amendment in a § 3582(c)(2) 9 proceeding because that right “extends only through the 10 defendant’s first appeal.” Reddick , 53 F.3d at 464. 11 Reddickalso forecloses Myers’s argument that he has a 12 statutory right to counsel under 18 U.S.C. § 3006A(c). Id. 13 at 465. 14 Myers also argues that the Fifth Amendment required the 15 appointment of counsel to ensure the “fundamental fairness” 16 of the proceedings. We have held, however, that the merits 17 of a § 3582(c)(2) motion will be a “significant factor in 18 the exercise of [the district court’s] discretion” in 19 determining whether to appoint counsel. Id . at 465 n.2. 20 “In this case, where it was readily ascertainable from the 21 record that Appellant was ineligible for a reduction in 22

4sentence, the court did not abuse its discretion by denying 1 his motion for appointment of counsel.” United States v. 2 Cirineo , 372 F. App’x 178, 179-80 (2d Cir. 2010). 3 We have considered all of Myers’s arguments and find 4 them to be without merit. For the reasons stated above, the 5 judgment of the district court is **AFFIRMED**
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FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 10

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