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United States v. Kupa



### 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

“ 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 the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 16 th day of May, two thousand

nineteen.

PRESENT: DENNIS JACOBS,

PIERRE N. LEVAL,

CHRISTOPHER F. DRONEY,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

‐ v. ‐ 18

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AFRIM KUPA,

Defendant

‐ Appellant,2 KEITH LEVINE, AKA TUTTI, NEIL LOMBARDO,

JOSEPH SCLAFANI, LULZIM KUPA, NEZER

PAPRANIKU, ALBERT CRISCI, JOSEPH IDA,

CARMEN MARTUCCI,

Defendants.

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FOR APPELLANT: Afrim Kupa, pro se, Danbury, CT.

FOR APPELLEE: Susan Corkery, Robert T. Polemeni,

Assistant United States Attorneys,

for Richard P. Donoghue, United

States Attorney for the Eastern

District of New York, Brooklyn, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Korman, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be

AFFIRMED

.

Appellant Afrim Kupa, proceeding pro se, moved under 18 U.S.C.

§ 3582(c)(2) for a reduction in his sentence for conspiracy to distribute cocaine

based on Amendment 782 to the United States Sentencing Guidelines. The

district court denied the motion, reasoning that Kupa was ineligible because

application of the amendment would not have lowered Kupa’s Guidelines range.

We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

Section 3582(c)(2) provides that a sentencing court may reduce a

defendant’s term of imprisonment if the sentence was based on a Guidelines

range that was subsequently lowered by the Sentencing Commission. See 18

U.S.C. § 3582(c)(2). We review de novo a district court’s determination as to3 whether a defendant is eligible for a sentence reduction. United States v.

Christie, 736 F.3d 191, 195 (2d Cir. 2013).

“Amendment 782

. . . amended the Drug Quantity Table in U.S.S.G.

§ 2D1.1 to reduce the offense levels associated with certain controlled substances

crimes by two levels.” United States v. Leonard, 844 F.3d 102, 106 (2d Cir.

2016); see also U.S.S.G. Supp. to App’x C, amend. 782. Amendment 788 permits

Amendment 782 to be applied retroactively. See U.S.S.G. Supp. to App’x C,

amend. 788. But Kupa’s Guidelines range was unaffected by the amendment,

because his original base offense level of 32 was reduced by two levels for

playing a minor role in the offense. Had Amendment 782 been in effect at the

time Kupa was sentenced, his resulting base offense level, 30, would have been

too low to receive any reduction for minor role. U.S.S.G. § 2D1.1(a)(5) (2012

Guidelines) (minor role reduction applies only when base offense level is 32 or

higher).

Kupa argues that that the district court should have reapplied the minor

role reduction after it applied the Amendment 782 reduction because a district

court “shall leave all other guideline application decisions unaffected” when

determining a defendant’s eligibility for a sentence reduction. U.S.S.G.

§ 1B1.10(b)(1). However, a reduction pursuant to Amendment 782 is “not

authorized under 18 U.S.C. § 3582(c)(2)” if it “does not have the effect of

lowering the defendant’s applicable guideline range.” Id. at § 1B1.10(a)(2)(B).

The court is not required “to ignore the effect of a lowered base offense level on

the other Guidelines provisions that, combined with [the] original base offense

level, produced the defendant’s initial sentencing range.” United States v.

Jarvis, 883 F.3d 18, 22 (2d Cir. 2018) (per curiam). In Jarvis, the defendant

would have received a 2

‐ level reduction in his base offense level, but due to how

the Guidelines calculated the total offense level for “grouped” offenses, his

Guidelines range remained unchanged. Id. Similarly, the application of

Amendment 782 to Kupa’s base offense level meant that another Guideline

‐‐ the

minor role reduction

‐‐ could no longer apply to his calculation. See id.; see also

United States v. Koglin, 822 F.3d 984, 987 (7th Cir. 2016) (defendant ineligible for

sentence reduction where a minor role reduction had lowered base offense level

from 32 to 30, because amended base offense level of 30 would make defendant4 ineligible for minor role reduction). Accordingly, the district court properly

determined that Kupa was ineligible for a sentence reduction.

We have considered all of Kupa’s remaining arguments and find them to

be without merit. For the foregoing reasons, the order of the district court is

AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK