18-2406 United States of America v. Lopez (Morel)

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 ELECTRON IC 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 Unite d States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
4 th day of October, two thousand nineteen.

Present: GUIDO CALABRESI, ROSEMARY S. POOLER, MICHAEL H. PARK, Circuit Judges

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 18-2406

FABIO MOREL, also known as Fabian L una, also known as Efrain Delvalle,

Defendant-Appellant,

AMAURY LOPEZ, JR., also known as Junior , also known as Sealed Defendant 1, AMAURY LOPEZ, SR., WILLIAM POZO, MARIBEL LOPEZ,

Defendants.

_____________________________________________________
Appearing for Appellant: Fabio Morel, pro se, Danbury, CT.

Appearing for Appellee: Jim Li gtenberg (Daniel B. Tehrani, on the brief ), Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.2 Appeal from the United States District Court fo r the Southern District of New York (Crotty, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said Dist rict Court be and it hereby is AFFIRMED

.

Fabio Morel appeals from the July 30, 2018 or der of the United States District Court for the Southern District of New York (Crotty, J. ), denying his motion for a reduction of his sentence. Morel contends he is eligible for a sentence reduction under 18 U.S.C. Sec. 3582(c)(2) based on the retroactive application of Am endment 782 to the United States Sentencing Guidelines, which lowered the base offense levels for most drug crimes. The district court denied Morel’s motion, concluding that he was inelig ible for a sentence reduction because the Guidelines sentencing range applied to More l was based on the murder committed during the drug trafficking conspiracy for which he was c onvicted, and not on the am ount of drugs involved in the conspiracy. We assume the parties’ fami liarity with the underlyi ng facts, procedural history, and specification of issues for review.

Under 18 U.S.C. Sec. 3582(c)(2), a district court may reduce a defendant’s term of imprisonment if his sentence was based on a sent encing range that the United States Sentencing Commission subsequently lowered. United States v. Borden , 564 F.3d 100, 103 (2d Cir. 2009).
This Court reviews de novo a district court’s dete rmination of whether a de fendant is eligible for a sentence reduction based on a post-sentence lowe ring of the defendant’s Guideline sentencing

range. See, e.g.

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

Here, the district court correctly determin ed that Morel was ineligible for a sentence reduction. “Amendment 782 . . . amended the Drug Quantity Table in U.S.S.G. § 2D1.1 to
reduce the offense levels associat ed with certain controlled subs tances crimes by two levels.”
United States v. Leonard , 844 F.3d 102, 106 (2d Cir. 2016) (citati ons omitted). But Morel’s total offense level (43) was calculated based on cros s-reference to U.S.S.G. Sec. 2A1.1, the firstdegree murder guideline, which Am endment 782 did not affect. The di strict court that sentenced Morel specifically stated that “w ith the cross reference to the mu rder guideline . . . the correct
calculation of the of fense level is 43.” 1

Morel is ineligible for a sentence reduction because Morel’s offense level thus remained unchanged from his original sentencing. See United States v. Mock , 612 F.3d 133, 138 (2d Cir. 2010) (determining that defendant was ineligible for sentence re duction where he was sentenced
under a Guidelines section that was unaffected by a Guidelines amendment). And, because Morel is ineligible for a sentence reduction, the district court did not err by faili ng to apply the Sec. 3553(a) factors. See Christie , 736 F.3d at 194 (“If, and only if , a defendant is eligible for a
reduction in sentence . . . then . . . the district court [must] co nsider any applicable § 3553(a) factors[.]” (quotation an d citation omitted)).

Morel’s arguments concerning the district court’s decision to deny him a sentence reduction are meritless. Accordingly, the di strict court properly denied his motion.

1 Morel’s contention on appeal that the district court did no t rely on the homicide guidelines is incorrect given the
district court’s clear st atement that the murder cross-reference applied.3 We have considered the remainder of More l’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk