### 1 15-3809 United States v. Clark



### 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**  A **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 1 

### the Second Circuit, held at the Thurgood Marshall United States 2 

### Courthouse, 40 Foley Square, in the City of New York, on the 3 

### 3 **rd** 

### day of February, two thousand seventeen. 4
5 

### PRESENT: DENNIS JACOBS, 6 

### BARRINGTON D. PARKER, 7 

### DEBRA ANN LIVINGSTON, 8 

### Circuit Judges. 9
10


### - - - - - - - - - - - - - - - - - - - -X 11 

### UNITED STATES OF AMERICA, 12 

### Appellee, 13
14 

### -v.- 15-3809 15
16 

### EDDIE LAMONT CLARK, 17 

### Defendant-Appellant. 18
19


### - - - - - - - - - - - - - - - - - - - -X 20
21


### FOR APPELLANT: BARCLAY T. JOHNSON, Office of the 22 

### Federal Public Defender, District 23 

### of Vermont, Burlington, VT. 24
25 

### FOR APPELLEE: BARBARA A. MASTERSON (Gregory L. 26 

### Waples, on the brief), Assistant 27

### 2 United States Attorney, for Eric 1 

### S. Miller, United States Attorney 2 

### for the District of Vermont, 3 

### Burlington, VT. 4
5 

### Appeal from a judgment of the United States District Court 6 

### for the District of Vermont (Murtha, J.). 7



### UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 8


### DECREED that the judgment of the district court be **AFFIRMED**

. 9



### Eddie Lamont Clark appeals from the judgment of the United 10 

### States District Court for the District of Vermont (Murtha, J.) 11 

### denying Clark’s motion for a reduced sentence pursuant to 18 12 

### U.S.C. § 3582(c)(2). We assume the parties’ familiarity with 13 

### the underlying facts, the procedural history, and the issues 14 

### presented for review. 15



### Clark was convicted of conspiracy to distribute cocaine. 16 

### At sentencing, relying on the 2009 edition of the United States 17 

### Sentencing Guidelines, the district court calculated Clark’s 18 

### Guidelines range to be 210-262 months’ imprisonment. Pursuant 19 

### to a plea agreement, the district court principally sentenced 20 

### Clark to 144 months’ imprisonment. 21



### Once Amendment 782 to the United States Sentencing 22 

### Guidelines (which reduced offense levels for certain drug 23 

### offenses by two levels) was made retroactive, Clark moved to 24 

### reduce his sentence to 120 months’ imprisonment, the mandatory 25 

### minimum sentence under the statute, to reflect a reduction 26 

### comparably less than the amended Guidelines range, as permitted 27 

### by § 1B1.10 of the Guidelines. The district court denied his 28 

### motion. The district court calculated his amended Guidelines 29 

### range to be 168-210 months’ imprisonment; based on the current 30 

### version of § 1B1.10, which prohibits a sentence reduction to 31 

### “a term that is less than the minimum of the amended guideline 32 

### range” except in certain cases where a defendant has provided 33 

### substantial assistance to the government, the district court 34 

### concluded that Clark was ineligible for a sentence reduction 35 

### because his sentence of 144 months’ imprisonment fell below the 36 

### amended Guidelines range. The district court also rejected 37 

### Clark’s contention that the current version of § 1B1.10, which 38

### 3 took effect after his sentencing, violates the Ex Post Facto 1 

### Clause. 2



### 1. A court may reduce a defendant’s sentence if he has been 3 

### “sentenced to a term of imprisonment based on a sentencing range 4 

### that has subsequently been lowered by the Sentencing 5 

### Commission,” and “if such a reduction is consistent with 6 

### applicable policy statements issued by the Sentencing 7 

### Commission.” 18 U.S.C. § 3582(c)(2); see also Dillon v. United 8 

### States, 560 U.S. 817, 819 (2010). 9



### The Sentencing Commission’s § 1B1.10 policy statement 10 

### prohibited the district court from granting Clark a sentence 11 

### reduction below 168 months’ imprisonment because that was the 12 

### minimum of his amended Guidelines range. The district court 13 

### correctly found Clark ineligible for a sentence reduction. 14



### 2. The Ex Post Facto Clause prohibits “the imposition of 15 

### punishment more severe than the punishment assigned by law when 16 

### the act to be punished occurred.” Weaver v. Graham, 450 U.S. 17 

### 24, 30 (1981). A particular change in law violates the Ex Post 18 

### Facto Clause if it “presents a sufficient risk of increasing 19 

### the measure of punishment attached to the covered crimes.” 20 

### Peugh v. United States, 133 S. Ct. 2072, 2082 (2013) (internal 21 

### quotation marks omitted). 22



### The fact that § 1B1.10 was revised after Clark’s sentencing 23 

### to restrict eligibility for a sentence reduction authorized by 24 

### a later Guidelines amendment does not violate the Ex Post Facto 25 

### Clause because, as we recently held, it does not present a risk 26 

### of increasing his, or any other defendant’s, punishment. 27 

### United States v. Ramirez, -- F.3d --, 2017 U.S. App. LEXIS 1297, 28 

### at *19-20, 2017 WL 359652, at *6-7 (2d Cir. Jan. 25, 2017). 29



### Accordingly, and finding no merit in Clark’s other 30 

### arguments, we hereby **AFFIRM** the judgment of the district court. 31



### FOR THE COURT: 32 

### CATHERINE O’HAGAN WOLFE, CLERK 33