United States Court of Appeals

For the First Circuit

No. 06-1679

UNITED STATES,

Appellee,

v.

HÉCTOR RODRÍGUEZ-PEÑA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Héctor Rodríguez-Peña on brief pro se.

Nelson Pérez-Sosa, Assistant U.S. Attorney, Jacqueline D.

Novas, Assistant U.S. Attorney, and Rosa Emilia Rodríguez-Velez,

United States Attorney, on brief for appellee.

December 11, 2006
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Per Curiam. Defendant Héctor Rodríguez-Peña, having been

convicted of multiple criminal offenses back in 1993, appeals from

the denial of his motion for reduction of sentence under 18 U.S.C.

§ 3582(c). It being clear that no such relief is warranted, we

summarily affirm.

In relevant part, § 3582(c) provides that, where a

defendant was sentenced “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission,” the

district court may reduce that sentence “if such a reduction is

consistent with applicable policy statements issued by the ...

Commission.” 18 U.S.C. § 3582(c)(2). A denial of § 3582(c) relief

is reviewed for abuse of discretion. See, e.g., United States v.

Hurley, 374 F.3d 38, 41 (1 Cir. 2004) (per curiam). st

Defendant advances three separate justifications for a

sentence reduction. First, he points to Amendment 500 to the

sentencing guidelines, which involved “role in the offense”

calculations. The amendment added an application note to U.S.S.G.

§ 3B1.1 (the “aggravating role” provision) stating that an upward

adjustment is appropriate only if the defendant managed “one or

more other participants”; exercising “management responsibility

over the property, assets, or activities of a criminal

organization” is not enough. The Commission did not include

Amendment 500 among those listed in U.S.S.G. § 1B1.10(c) as

eligible for retroactive application. We note, in passing, that
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the amendment took effect in 1993 and that defendant provides no

explanation for his over-twelve-year delay in invoking same. 

Defendant’s argument rests on three assertions: (1) that

Amendment 500 is “clarifying” rather than “substantive”; (2) that

the amendment, for that reason, can be applied retroactively to

obtain § 3582(c) relief despite its omission from § 1B1.10(c); and

(3) that doing so here would result in a lower sentence. There is

no need to address the first two propositions, since the final one

is plainly incorrect: the record makes clear that defendant managed

one or more other participants. The presentence report (PSR), for

example, states in pertinent part as follows:

On June 1, 1992, the defendant instructed

codefendant Victor Rivera to acquire a vehicle

to transport the drug cargo and furnished the

undercover agent with such a vehicle. Under

his instructions codefendant Angel Galindez

delivered to the undercover agent $30,000.00

in exchange for the keys and location of the

truck containing the marijuana load.

(Emphasis added.) Indeed, the PSR explains that, upon the arrest

of a key operative, defendant “agreed to continue in charge of the

drug smuggling operation”–-a point echoed in our opinion on direct

appeal. See United States v. Rodríguez-Peña, 1995 WL 275691, at *1

(1 Cir. 1995) (unpublished). Moreover, the interpretation of § st

3B1.1 adopted by Amendment 500 was the one already prevailing in

this circuit; the amendment specifically identified United States

v. Fuller, 897 F.2d 1217 (1 Cir. 1990), as one of the cases st

supporting the view it was endorsing. There is no indication that
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the sentencing judge deviated from this precedent (a matter that

could have been-–but was not--raised on direct appeal).

Accordingly, application of Amendment 500 would not change

defendant’s sentence.

Second, defendant contends that a § 3582(c) reduction is

warranted in the wake of United States v. Booker, 543 U.S. 220

(2005), on the theory that that decision “clarified” the

guidelines. This argument has been roundly rejected. See, e.g.,

United States v. Price, 438 F.3d 1005, 1007 n.2 (10 Cir.) (citing th

cases), cert. denied, 126 S. Ct. 2365 (2006); United States v.

Moreno, 421 F.3d 1217, 1220-21 (11 Cir. 2005) (per curiam), cert. th

denied, 126 S. Ct. 1643 (2006). Among other flaws, it overlooks

the fact that § 3582(c) only allows a reduction where “the

Sentencing Commission, not the Supreme Court, has lowered the

[sentencing] range.” Price, 438 F.3d at 1007. Moreover, because

defendant already has been denied relief under 28 U.S.C. § 2255,

such an argument, if successful, would improperly bypass the

second-or-successive regimen prescribed by § 2255 ¶ 8.

Finally, defendant seeks a sentence reduction because of

his extensive post-judgment rehabilitation. Yet such conduct,

while commendable, has nothing to do with the lowering of the

sentencing range by the Commission, as required by § 3582(c).

Accordingly, such rehabilitation provides no basis either for a

sentencing reduction in its own right, see, e.g., Quesada-Mosquera
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v. United States, 243 F.3d 685, 686 (2d Cir. 2001), or for a

further downward departure where a § 3582(c) reduction is ordered

for some other reason, see, e.g., United States v. Hasan, 245 F.3d

682 (8 Cir. 2001) (en banc); cf. United States v. Jordan, 162 F.3d th

1 (1 Cir. 1998). st

Defendant also faults the district court for failing to

explain the basis for its § 3582(c) denial. This complaint falls

short, inasmuch as defendant’s ineligibility for such relief is

self-evident. See generally Witty v. Dukakis, 3 F.3d 517, 521 (1st

Cir. 1993) (finding no need for district court explanation when

reason for ruling is “apparent on the face of the record”). In any

event, this court “can affirm on any basis available in the

record.” Peguero-Moronta v. Santiago, 464 F.3d 29, 34 (1 Cir. st

2006).

Affirmed.