1

15-3809 

United States v. Clark

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 A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for 

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

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

3rd 4 day of February, two thousand seventeen. 

5 

6 PRESENT: DENNIS JACOBS, 

7 BARRINGTON D. PARKER, 

8 DEBRA ANN LIVINGSTON, 

9 Circuit Judges. 

10 

11 - - - - - - - - - - - - - - - - - - - -X 

12 UNITED STATES OF AMERICA, 

13 Appellee, 

14 

15 -v.- 15-3809 

16 

17 EDDIE LAMONT CLARK, 

18 Defendant-Appellant. 

19 

20 - - - - - - - - - - - - - - - - - - - -X 

21 

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

23 Federal Public Defender, District 

24 of Vermont, Burlington, VT. 

25 

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

27 Waples, on the brief), Assistant 
2

1 United States Attorney, for Eric 

2 S. Miller, United States Attorney 

3 for the District of Vermont, 

4 Burlington, VT. 

5 

6 Appeal from a judgment of the United States District Court 

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

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

9 DECREED that the judgment of the district court be AFFIRMED. 

10 Eddie Lamont Clark appeals from the judgment of the United 

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

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

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

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

15 presented for review. 

16 Clark was convicted of conspiracy to distribute cocaine. 

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

18 Sentencing Guidelines, the district court calculated Clark’s 

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

20 to a plea agreement, the district court principally sentenced 

21 Clark to 144 months’ imprisonment. 

22 Once Amendment 782 to the United States Sentencing 

23 Guidelines (which reduced offense levels for certain drug 

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

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

26 minimum sentence under the statute, to reflect a reduction 

27 comparably less than the amended Guidelines range, as permitted 

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

29 motion. The district court calculated his amended Guidelines 

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

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

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

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

34 substantial assistance to the government, the district court 

35 concluded that Clark was ineligible for a sentence reduction 

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

37 amended Guidelines range. The district court also rejected 

38 Clark’s contention that the current version of § 1B1.10, which 
3

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

2 Clause. 

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

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

5 that has subsequently been lowered by the Sentencing 

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

7 applicable policy statements issued by the Sentencing 

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

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

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

11 prohibited the district court from granting Clark a sentence 

12 reduction below 168 months’ imprisonment because that was the 

13 minimum of his amended Guidelines range. The district court 

14 correctly found Clark ineligible for a sentence reduction. 

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

16 punishment more severe than the punishment assigned by law when 

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

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

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

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

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

22 quotation marks omitted). 

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

24 to restrict eligibility for a sentence reduction authorized by 

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

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

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

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

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

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

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

32 FOR THE COURT: 

33 CATHERINE O’HAGAN WOLFE, CLERK