     09-1874-cr
     United States v. Darco
 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 14 th day of May, two thousand nine.
17
18   PRESENT:             JON O. NEWMAN,
19                        JOHN M. WALKER, JR.,
20                        GERARD E. LYNCH,
21                                       Circuit Judges.
22
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24   UNITED STATES OF AMERICA,
25                                             Appellee,
26                            v.                                                   No. 09-1874-cr
27
28   JOHN DARCO,
29                                            Defendant-Appellant,
30
31   ALBERT PANEQUE,
32                                            Defendant.
33
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35   APPEARING FOR APPELLANT:                          B. Alan Seidler, New York, New York.
36
37   APPEARING FOR APPELLEE:                           M ichael Yaeger, A ssistant U nited States
38                                                     Attorney, (Emily Berger, Assistant United States
39                                                     Attorney, on the brief) for Benton Campbell,
40                                                     United States Attorney for the Eastern District of
41                                                     New York.

42             Appeal from the United States District Court for the Eastern District of New York

43   (Charles P. Sifton, Judge).
 1            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court is AFFIRMED.

 3            In 2000, a jury convicted John Darco of three counts of armed bank robbery in

 4   violation of 18 U.S.C. §§ 2113(a) and (d), conspiracy to commit armed bank robbery in

 5   violation of 18 U.S.C. § 371, use of a firearm during a crime of violence in violation of 18

 6   U.S.C. § 924(c)(1)(A), possession of a firearm by a convicted felon in violation of 18 U.S.C.

 7   §§ 922(g)(1) and 924(a)(2); and prison escape in violation of 18 U.S.C. § 751(a). In 2001,

 8   the district court sentenced him to 346 months’ imprisonment. In 2008, Darco moved for a

 9   sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), and the district court denied that

10   motion. Darco appeals that denial.

11   I. Armed Career Criminal Determination

12            At sentencing, the district court found Darco to be an armed career criminal within

13   the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e), because he had previously

14   been convicted of three bank robberies.1 The court therefore applied the provisions of United



     1
         18 U.S.C. § 924(e)(1) provides:

                     In the case of a person who violates section 922(g) of this title
                     and has three previous convictions by any court referred to in
                     section 922(g)(1) of this title for a violent felony . . .
                     committed on occasions different from one another, such
                     person shall be . . . imprisoned not less than fifteen years, and,
                     notwithstanding any other provision of law, the court shall not
                     suspend the sentence of, or grant a probationary sentence to,
                     such person with respect to the conviction under section
                     922(g).

                                                     2
 1   States Sentencing Guidelines (“U.S.S.G.”) Section 4B1.4,2 thereby increasing his criminal

 2   history category (“CHC”) from III to VI3 and his offense level from 32 to 34, yielding a

 3   Guidelines range of 262 to 367 months’ imprisonment.

 4            Darco appealed his sentence, arguing that he should not be considered an armed career

 5   criminal because his three prior robbery convictions had come in a single case, based on a

 6   single series of transactions that led to a single concurrent sentence. In 2002, we rejected that

 7   argument based on our prior holding in United States v. Rideout, 3 F.3d 32, 35 (2d Cir.

 8   1993). See United States v. Paneque, 60 F. App’x. 339, 342 (2d Cir. 2002).

 9            Several years thereafter, Darco sought a sentence reduction under § 3582(c)(2). That

10   section provides:
11
12                   The court may not modify a term of imprisonment once it has
13                   been imposed except that . . . in the case of a defendant who has

     2
         Section 4B1.4 provides:

                     (a) A defendant who is subject to an enhanced sentence under
                     the provisions of 18 U.S.C. § 924(e) is an armed career
                     criminal.
                     (b) The offense level for an armed career criminal is the
                     greatest of: . . . .
                     (3)(A) 34, if the defendant used or possessed the firearm or
                     ammunition in connection with . . . a crime of violence . . . .
                     (c) The criminal history category for an armed career criminal
                     is . . . .
                     (2) Category VI, if the defendant used or possessed the
                     firearm or ammunition in connection with . . . a crime of
                     violence . . . .
     3
      In its April 21, 2009 Memorandum and Order, the district court incorrectly stated that
     Darco’s CHC was enhanced to level IV. In fact, at sentence, the district court noted that
     Darco’s CHC was VI.

                                                    3
 1                 been sentenced to a term of imprisonment based on a sentencing
 2                 range that has subsequently been lowered by the Sentencing
 3                 Commission pursuant to 28 U.S.C. 994(o) . . . the court may
 4                 reduce the term of imprisonment . . . if such a reduction is
 5                 consistent with applicable policy statements issued by the
 6                 Sentencing Commission.
 7
 8           Darco bases his argument on the 2007 Amendment 709 to U.S.S.G. Section 4A1.2.

 9   Section 4A1.2 instructs courts how to count multiple prior sentences when computing a

10   defendant’s criminal history, and Amendment 709 altered the way past offenses are counted

11   for that purpose.4 Darco argues that Amendment 709 compels the district court to count his

12   prior convictions as one offense rather than three when determining whether to sentence him

13   as an armed career criminal. If the court had counted those convictions as one offense, Darco

14   would not have been considered an armed career criminal.

15           But Darco’s argument misses the mark. Amendment 709 changed how multiple

16   convictions are counted only for the purpose of calculating a defendant’s criminal history

17   points under U.S.S.G. § 4A1.2. But § 4A1.2 does not bear on the calculation of Darco’s

18   sentence. Darco’s sentence was enhanced under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4,


     4
         Amendment 709 provides:

                   If the defendant has multiple prior sentences, determine
                   whether those sentences are counted separately or as a single
                   sentence. Prior sentences always are counted separately if the
                   sentences were imposed for offenses that were separated by
                   an intervening arrest . . . . If there is no intervening arrest,
                   prior sentences are counted separately unless (A) the
                   sentences resulted from offenses contained in the same
                   charging instrument; or (B) the sentences were imposed on
                   the same day. Count any prior sentence covered by (A) or (B)
                   as a single sentence.

                                                  4
 1   which are entirely separate from U.S.S.G. § 4A1.2. Cf. U.S.S.G. § 4B1.4 cmt n.1 (noting that

 2   the time periods for the counting of prior sentences under § 4A1.2 do not apply to “the

 3   determination of whether a defendant is subject to an enhanced sentence under 18 U.S.C.

 4   § 924(e).”). Amendment 709 did not change how multiple convictions are counted for the

 5   purpose of these provisions. A change in a Guideline governing how convictions are counted

 6   for purposes of the criminal history score does not supersede this court’s interpretation of a

 7   separate statute that has its own approach to counting prior convictions, which remains good

 8   law and is the law of this case. Amendment 709 speaks only to the calculation of Darco’s

 9   criminal history points under U.S.S.G. § 4A1.2, and it does not lower the sentencing

10   Guideline range calculated for Darco pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.

11          In any event, even if Amendment 709 did pertain to Darco’s sentencing Guideline

12   range, that amendment cannot serve as the basis of a § 3582(c)(2) motion because the

13   Sentencing Guidelines do not specify that the amendment applies retroactively. Section

14   3582(c)(2) authorizes sentence reductions only to the extent “consistent with applicable

15   policy statements issued by the Sentencing Commission.” The applicable policy statement

16   specifies those amendments that apply retroactively to permit such reductions; Amendment

17   709 is not on the list. U.S.S.G. § 1B1.10(a), (c). See United States v. Caceda, 990 F.2d 707,

18   710 (2d Cir. 1993) (“Only certain enumerated amendments are specified by the Guidelines

19   as exceptions to the general rule that amendments are not to be applied retroactively even

20   though appellate review has not been concluded. . . . [T]he pertinent amendment is not




                                                   5
 1   among those explicitly stated to be retroactive by the Sentencing Commission, and should

 2   not be applied retroactively.”) (internal quotation marks and citations omitted).

 3   II. Consecutive Mandatory Minimum Sentence Issue

 4          Darco’s conviction under 18 U.S.C. § 924(c)(1)(A) carried a mandatory seven-year

 5   sentence because Darco brandished a gun in the course of the robbery. The district court

 6   imposed that sentence to run consecutively to his sentence on the § 922(g) count, which

 7   called for a mandatory minimum of fifteen years. Darco argues that his § 924(c)(1)(A)

 8   sentence is “illegal” because it was contrary to United States v. Whitley, 529 F.3d 150 (2d

 9   Cir. 2008), and United States v. Williams, 558 F.3d 166 (2d Cir. 2009), which hold that a

10   district court may not impose a consecutive mandatory minimum sentence for a § 924(c)

11   violation if the court imposes a longer mandatory minimum sentence on another count of

12   conviction.

13          We decline to review this argument. First, Darco failed to raise this argument in the

14   district court. Second, Darco’s sentence reduction motion under § 3582(c)(2) authorizes a

15   court to modify his sentence only if it was “based on a sentencing range that has subsequently

16   been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. §

17   3582(c)(2).   Since this argument does not implicate any sentencing range that has

18   subsequently been lowered, § 3582(c)(2) is not the proper vehicle for it. To the extent that

19   Darco challenges the legality of the sentence imposed, the proper vehicle for such a

20   challenge would be a motion pursuant to 28 U.S.C. § 2255. However, we express no views




                                                   6
1   as to whether, on such a motion, the rule of Whitley and Williams would be available on

2   collateral attack.

3          For the foregoing reasons, the judgment of the district court is AFFIRMED.

4                                     FOR THE COURT:
5                                     CATHERINE O’HAGAN WOLFE, Clerk of Court
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