15-1110 United States v. Suarez UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 St ates Court of Appeals for the Second 1 Circuit, held at the Thurgood Marshall Unit ed States Courthouse, 40 Foley Square, 2 in the City of New York, on the 29 th day of January, tw o thousand sixteen. 3 4 PRESENT: 5 GUIDO CALABRESI, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9

___________________ __________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee , 14 15 v. No. 15-1110 16 17 REINALDO SUAREZ, 18 19 Defendant-Appellant

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___________________ __________________ 21 22 FOR APPELLEE: Monica J. Richards, Assistant United States 23 Attorney, for William J. Hochul, Jr., United 24 States Attorney for the Western District of 25 New York, Buffalo, NY. 26 27 FOR DEFENDANT-APPELLANT: Reinaldo Suarez, pro se, Bruceton Mills, WV. 28 29 30 312 Appeal from an order of the United States District Court for the Western District of 1 New York (David G. Larimer, Judge ). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 3 AND DECREED that the order of the district court is AFFIRMED

. 4 Appellant Reinaldo Suarez, proceeding pro se , appeals the district court’s denial of 5 his motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduction in his sentence based on 6 Amendment 782, which modified § 2D1.1 of the United States Se ntencing Guidelines 7 Manual (“Sentencing Guidelin es”) to lower the Sentencing Guidelines’ sentencing range 8 for certain categories of drug-related offens es. The Sentencing Commission later adopted 9 Amendment 788, which authorized retroa ctive application of Amendment 782 to 10

defendants sentenced before its effective date, November 1, 20 14. We assume the parties’ 11 familiarity with the und erlying facts, the procedural hist ory of the case, and the issues on 12 appeal. 13 Section 3582(c)(2) provides that a sentenci ng court may reduce a defendant’s term 14 of imprisonment if his sentence was based on a guideline sentencing range subsequently 15 lowered by the Sentencing Commission. The sc ope of relief provided by § 3582(c)(2) is 16 narrow; it authorizes only “a limited adjustment to an otherwise final sentence and not a 17 plenary resentencing proceeding.” Dillon v. United States , 560 U.S. 817, 825 (2010). 18

We review de novo “the determination of wh ether the defendant’s sentence was based on a 19 sentencing range that was subsequently lo wered by the Sentencing Commission,” and thus 203 whether he was eligible for § 3582(c)(2) relief. United States v. Christie , 736 F.3d 191, 1 195 (2d Cir. 2013) (int ernal quotation mark and alteration omitted). 2 The district court properly determined th at Suarez was ineligible for a reduction 3 pursuant to § 3582(c)(2). Suarez pled guilty to violating 21 U.S.C. § 846 (conspiracy to 4 possess with intent to distribute and to distribut e 500 grams or more of cocaine) pursuant to 5 a written plea agreement and was sentenced primar ily to 200 months in prison. Suarez’s 6 guideline sentencing range was based not on U. S.S.G. § 2D1.1, the guideline pertaining to 7 his offense conduct that was modified by Ame ndment 782, but rather on the finding that he 8

was a “career offender” under U. S.S.G. § 4B1.1, a fact he stipulated to in his plea 9 agreement. 1 10 A district court may not reduce a senten ce pursuant to § 3582(c)(2) if “the 11

amendment does not have the effect of loweri ng the defendant’s applicable guideline range 12 because of the operation of anot her guideline,” as is the case here. U.S.S.G. § 1B1.10 13 comment (n.1(A)); see U.S.S.G. § 1B1.10(a)(2)(B). Because Suarez’s guideline 14 sentencing range was calculate d based on his career offender status, Amendment 782 does 15

1 In his plea agreement Suar ez explicitly waived his righ t to apply for a sentence modification pursuant to § 3 582(c)(2). Some district cour ts within our circuit have enforced such a waiver. See United States v. Watson, 20 13 WL 6504393, at *2 (S.D.N.Y. Dec. 11, 2013); Barrett v. United States, 2015 WL 3778804, at *2-3 (S.D.N.Y. June 15, 2015). At least one district court has gr anted a sentence reduction pursuant to § 3582(c)(2) despite such a waiver in the defendant’s plea agreem ent, asserting the power to do so on its own motion. United States v. Bailey, 2013 WL 18286 69, at *8 (S.D.N.Y. Apr. 29, 2013); see also United States v. St . James, 2014 WL 1409 995, *2 n.1 (9th Cir. 2014). We need not decide whether Suarez’s waiver precludes a sentence reduction because, for the reasons below, he does not qualify for a sentence modification in any event.4 not lower his applicable guideline. See, e.g. , United States v. Mock , 612 F.3d 133, 138 (2d 1 Cir. 2010) (holding that defendant sentenced as a career offender under § 4B1.1 was not 2 eligible for a sentence reduction under sentencing guideline amendments commonly 3 referred to as “the crack cocaine amendments”); United States v. Martinez , 572 F.3d 82, 4 84-85 (2d Cir. 2009) (explaining that “[t]he fact that, but for his career offender 5 designation, Martinez’s sentence would have been based on the now-amended crack 6 cocaine guideline is of no relevance for purpos es of a sentence reduction”). Therefore the 7 district court did not err in denying de fendant’s motion for a sentence reduction. 8

We have considered all of Suarez’s re maining arguments and find them to be 9 without merit. Accordingly, we AFFIRM the order of the district court. 10

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13