2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-23-2009

USA v. Carlos Peralta

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4686

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Recommended Citation

"USA v. Carlos Peralta" (2009). 2009 Decisions. Paper 618.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4686

 

UNITED STATES OF AMERICA

v.

CARLOS PERALTA, 

a/k/a Rafael A. Lora

 a/k/a Charlie

Carlos Peralta,

 Appellant

(D.C. Nos. 07-cr-00027-001 & 07-cr-00216-001)

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 3-07-cr-00216-001)

District Judge: Hon. Thomas I. Vanaskie

 

Submitted Under Third Circuit L.A.R. 34.1(a)

September 14, 2009

Before: SLOVITER, FUENTES and SMITH, Circuit Judges

(Filed: September 23, 2009)

 

OPINION

SLOVITER, Circuit Judge.

Appellant Carlos Peralta appeals the District Court’s decision not to grant him a
 The PSR was calculated under the 2007 version of the 1

Guidelines.

2

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We will affirm. 

I.

In July 2007, Peralta pled guilty to possession with intent to distribute cocaine

base, in violation of 21 U.S.C. § 841(a)(1), and illegal re-entry into the United States by

an aggravated felon, in violation of 8 U.S.C. § 1326(b)(2). At Peralta’s sentencing

hearing in December 2007, the District Court adopted, without objection, the Presentence

Report (“PSR”) prepared by the Probation Office.

According to the PSR, Peralta was responsible for 114.22 grams of cocaine base

and 99.36 grams of cocaine powder. Under the Sentencing Guidelines applicable at that

time, Peralta faced a base offense level of thirty-two based on this amount of drugs. 1

Peralta’s immigration offense had no impact on his offense level. The PSR recommended

a three-level reduction for acceptance of responsibility, and, combined with his criminal

history category of I, Peralta therefore faced a Guidelines sentence of 87 to 108 months

imprisonment.

After hearing argument from both parties, the District Court imposed a sentence of

sixty-four months imprisonment. The Court recognized that, under United States v.

Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85 (2007), it

could grant a variance to account for the crack-powder sentencing disparity, and decided
3

that such a variance was appropriate here. The Court also noted that the Sentencing

Commission had issued Amendment 706 to the Guidelines to reduce the offense level for

certain crack cocaine offenses by two levels. The Court announced that it would apply

such a reduction to Peralta’s sentence even though it was outside the scope of

Amendment 706. See U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007). The Court also

determined that the sentence balanced Peralta’s status as a low-level dealer and his poor

health against his record of multiple illegal entries into the United States and prior drug

offenses.

Peralta did not appeal his conviction or sentence. However, Peralta subsequently

moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which permits a

district court to reduce a sentence that was “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission . . . , if such reduction is

consistent with applicable policy statements issued by the Sentencing Commission.” In

support of his motion, Peralta relied upon Amendment 715, which was made retroactive

by Amendment 716. See U.S.S.G. App. C., Amends. 715, 716 (May 1, 2008). Pursuant

to Amendment 715, the base offense level for Peralta’s drug offense would be reduced to

thirty, and he would face an amended Guidelines range of seventy to eighty-seven months

imprisonment. Peralta seeks a new sentence of fifty-two months imprisonment, i.e., a

variance from the amended Guidelines range equivalent to the variance granted by the

District Court below his original Guidelines range. Appellant’s Br. at 9.
The District Court had jurisdiction pursuant to 18 U.S.C. 2

§§ 3231 and 3582. We have jurisdiction under 28 U.S.C. § 1291

and review a district court’s “decision whether to grant or deny a

defendant’s motion to reduce sentence under § 3852(c)(2) for

abuse of discretion.” United States v. Mateo, 560 F.3d 152, 154

(3d Cir. 2009). 

4

The District Court denied the motion for a sentence reduction. It held that Peralta

“was given the benefit of the two level reduction authorized by Amendment 715; the

sentence was below the advisory guideline range even after the two level reduction . . . ;

and the Court finds [Peralta] is not eligible for any additional reduction in his sentence as

it already took into account the crack cocaine amendments.” App. at 3. Peralta timely

appealed.2

II.

Although his original sentence “already took into account the crack cocaine

amendments,” Peralta still argues that the District Court erred in denying his motion for a

sentence reduction. App. at 3. We disagree. 

As noted above, the District Court anticipated Amendment 715 and applied a twolevel reduction to the offense level for Peralta’s drug offense. Thus, Peralta, in essence,

already received the benefit of Amendment 715 in his original sentence. That is all

Peralta is entitled to under § 3582(c)(2). See U.S.S.G. § 1B1.10(b)(1) (“In determining

whether, and to what extent, a reduction in the defendant’s term of imprisonment under

18 U.S.C. § 3582(c)(2) and this policy statement is warranted . . . the court shall substitute
only the [applicable] amendments . . . for the corresponding guideline provisions that

were applied when the defendant was sentenced . . . .”). 

Further, the District Court granted Peralta a downward variance pursuant to

Booker and Kimbrough and sentenced him to sixty-four months imprisonment, i.e., below

both the original and amended Guidelines ranges. Under the Sentencing Guidelines, “if

the original term of imprisonment constituted a non-guideline sentence determined

pursuant to 18 U.S.C. § 3553(a) and [Booker], a further reduction generally would not be

appropriate.” U.S.S.G. § 1B1.10(b)(2)(B). Contrary to Peralta’s arguments to this court,

“[n]othing in Booker purported to obviate the congressional directive in § 3582(c)(2) that

a sentence reduction pursuant to that section be consistent with Sentencing Commission

policy statements.” United States v. Doe, 564 F.3d 305, 314 (3d Cir. 2009).

Accordingly, the District Court did not abuse its discretion in rejecting Peralta’s

request for a sentence reduction. Peralta has already received the benefit of Amendment

715, and, in any case, the Sentencing Guidelines make clear that a sentence reduction is

generally not appropriate where a defendant, like Peralta, received a downward variance

in his or her original sentence.

III.

For the above-stated reasons, we will affirm the District Court’s order denying a

sentence reduction.