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16-3449 

United States v. Alvarez

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 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY 

CITING TO 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 Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

6th day of December, two thousand seventeen. 

PRESENT: 

DENNIS JACOBS,

REENA RAGGI, 

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

-v.- 16-3449 

FERNANDO ALVAREZ, 

 Defendant-Appellant, 

RICARDO MELENDEZ, also known as 

RICKY, GERALDO VEGA, MANUEL 

CONCEPCION, also known as M.C., 

also known as MANNY C., also known 

as MANNY CONCEPCION, also known as 

MANNY C.CONCEPCION, also known as 
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M. CONCEPCION, JUAN RIVERA, ARTURO 

CORDOZA, KENNETH COLON, JAVIER 

RIVERA, VICTOR JIMINEZ, MARIANO 

DEGRACIA, ROBERT ORTIZ, OSCAR 

ROSA, VICTOR SPAVENTA, WARREN 

NADEL, TRENT DALEY, DAVID OLMEDA, 

FELIX OYOLE, ADAM POMALES, ISRAEL 

ORTIZ, NELSON FRIAS, VINCENT 

HERNANDEZ, VINCENT LOPEZ,ROBERTO 

APONTE, RICARDO ALVAREZ, EDUARDO 

HAMILTON, NELIA LOPEZ, EDWIN 

MALDONADO, JULIA SERRANO, JULIA 

RIVERA, ANTHONY GUZMAN, WILFREDO 

GONZALEZ, JAMES RUPERTO, MARC 

RAMIREZ, RODRIGUEZ RODRIGUEZ, 

EDGAR RIVERA, ANIBAL IRIZZARI, 

ARMANDO VELASQUEZ, RALPH BOYCE, 

RICARDO ORTIZ, HECTOR HERNANDEZ, 

 Defendants. 

____________________________________ 

FOR DEFENDANT-APPELLANT: Joseph J. Ferrante, Keahon, 

Fleischer & Ferrante, Hauppauge, 

NY. 

 

FOR APPELLEE: Erin E. Argo and Susan Corkery, 

Assistant United States 

Attorneys, for Bridget M. Rohde, 

Acting United States Attorney for 

the Eastern District of New York, 

Brooklyn, NY.

 

Appeal from an order of the United States District Court 

for the Eastern District of New York (Spatt, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the order of the district court is AFFIRMED. 

Fernando Alvarez, who was sentenced in 1991 for several 

narcotics-related offenses, appeals from an order of the United 

States District Court for the Eastern District of New York 
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(Spatt, J.) denying his motion for a sentence reduction on the 

ground that he is ineligible for a reduction as a matter of law. 

On de novo review, we affirm. See United States v. Main, 579 

F.3d 200, 202-03 (2d Cir. 2009). We assume the parties’ 

familiarity with the underlying facts, the procedural history, 

and the issues presented for review. 

A defendant is eligible for a sentence reduction if he was 

sentenced pursuant to a Guidelines Sentencing Range (“GSR”) 

that has since been lowered by an amendment to the Guidelines. 

See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10; see also 

Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007) 

(per curiam). Alvarez asserts that he is eligible for a 

sentence reduction in light of Amendment 782 to the Guidelines, 

which, on November 1, 2014, lowered the Base Offense Level 

(“BOL”) applicable to certain narcotics-related offenses. See 

U.S.S.G. App. C, amend. 782 (2014). 

However, as the district court recognized, Amendment 782 

actually raised the BOL applicable to Alvarez’s offenses, given 

that those offenses were found at his original sentencing 

proceeding to involve at least 300 kilograms of heroin. See 

U.S.S.G. § 2D1.1(c)(1) (reflecting a BOL that is higher 

post-amendment for offenses involving 90 or more kilograms of 

heroin). As a result, Alvarez’s GSR was not lowered by the 

amended Guidelines, and he is therefore ineligible for a 

sentence reduction. See United States v. Johnson, 633 F.3d 

116, 117 (2d Cir. 2011) (per curiam). 

Alvarez claims that there was no finding at his original 

sentencing proceeding as to the quantity of drugs involved in 

his offenses and that the district court was therefore required 

to make such a finding in order to determine the effect of 

Amendment 782 on his GSR. However, the court stated at 

Alvarez’s 1991 sentencing hearing that it was relying on the 

findings in the Presentence Report (“PSR”), which concluded 

that Alvarez’s offenses involved at least 300 kilograms of 

heroin; when the court asked Alvarez’s counsel if there were 

any errors in the PSR, counsel responded that “there [were] no 

errors”; finally, the court stated that, to the extent Alvarez 

objected to the PSR’s drug-quantity finding (in a letter 
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submitted in advance of the hearing), the court “decline[d] to 

in any way alter” that finding. App’x at 90-93. 

Alvarez’s claim that the sentencing court made no 

drug-quantity finding is therefore belied by the record, which 

reflects the 300-kilogram finding cited by the district court’s 

ruling on Alvarez’s motion. Finally, in determining whether 

Amendment 782 lowered the GSR applicable to Alvarez, the 

district court was prohibited from “mak[ing] findings 

inconsistent with that of the original sentencing court.” 

United States v. Rios, 765 F.3d 133, 138 (2d Cir. 2014) (citation 

omitted). 

We have considered Alvarez’s remaining arguments and find 

them to be without merit. For the foregoing reasons, Alvarez, 

who is currently serving multiple concurrent life sentences, 

fewer than all of which are at issue in the motion underlying 

this appeal, is ineligible for the sentence reduction he seeks. 

We AFFIRM the order of the district court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court