                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2006

USA v. Oleka
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2092




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"USA v. Oleka" (2006). 2006 Decisions. Paper 191.
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HLD-9 (October 2006)                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-2092
                                  ________________

                           UNITED STATES OF AMERICA


                                           v.

                           IKECHUKWU HYKAS OLEKA,
                                            Appellant

                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                               (D.C. Crim. No. 92-0404)
                      District Judge: Honorable Joseph E. Irenas
                    _______________________________________

Submitted for Possible Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                October 13, 2006
Before: SCIRICA, CHIEF JUDGE, WEIS AND GARTH, CIRCUIT JUDGES


                              (Filed: November 15, 2006)




                                       OPINION


PER CURIAM

      Ikechukwu Oleka appeals from the District Court’s order, entered March 13, 2006,

denying his motion for modification of sentence pursuant to 18 U.S.C. § 3582(c)(2). For
the reasons below, we will summarily affirm the District Court’s order.

       In 1994, Oleka was convicted by a jury of conspiring to import heroin in violation

of 21 U.S.C. § 963. He was sentenced to 262 months’ imprisonment. His sentence was

enhanced pursuant to United States Sentencing Guideline § 3B1.1 due to his supervisory

role in the offense. We affirmed on direct appeal, and the United States Supreme Court

denied Oleka’s petition for writ of certiorari. Oleka has since filed an unsuccessful

§ 2255 motion and a § 2244 application that was denied by this Court. See C.A. Nos. 97-

5518 & 01-4148. On October 18, 2005, Oleka filed a motion for modification of

sentence pursuant to § 3582(c)(2). In the motion, Oleka argued that Amendment 500 to

U.S.S.G. § 3B1.1 applied to his sentence, which should be reduced pursuant to

§ 3582(c)(2).1 The District Court denied the motion, concluding that § 3582(c)(2) was

inapplicable to Oleka, and that Amendment 500 was properly applied when Oleka was

sentenced, in any event. Oleka filed a timely notice of appeal. He now seeks summary

reversal of the District Court’s order.

       We conclude that Oleka’s § 3582 motion was properly denied. Section 3582(c)(2)

provides that a sentence may be reduced “in the case of a defendant who has been




1 Amendment 500 provides: “To qualify for an adjustment under [§ 3B1.1], the defendant
must have been the organizer, leader, manager, or supervisor of one or more other
participants. An upward departure may be warranted, however, in the case of a defendant
who did not organize, lead, manage, or supervise another participant, but who
nevertheless exercised management responsibility over the property, assets, or activities
of a criminal organization.” U.S.S.G. § 3B1.1, App. Note 2.

                                             2
sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). We agree with

the District Court that Amendment 500, which became effective on November 1, 1993,

was in place at the time Oleka was sentenced in 1994, and, thus, did not “subsequently

lower” Oleka’s sentencing range in any way. Moreover, at the time of sentencing, the

District Court had determined that Oleka had a managerial or supervisory role over

others, thus triggering an upward adjustment under § 3B1.1(b). See D. Ct. Op., 3.

Accordingly, Oleka’s argument regarding Application Note 2 to Amendment 500 is

simply incorrect.

       For the foregoing reasons, we conclude that no substantial question is presented in

this appeal. We, therefore, will affirm the District Court’s judgment. Oleka’s motion for

summary reversal is denied.




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