     16-4322-cr
     US v. Ortiz-Rosa

                                  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 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.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   10th day of April, two thousand eighteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               REENA RAGGI,
 7               CHRISTOPHER F. DRONEY
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                   Appellee,
14
15                           v.                                                  16-4322-cr
16
17   RICARDO ORTIZ-ROSA,
18
19                           Defendant-Appellant.1
20   _____________________________________________________
21
22   Appearing for Appellant:        Lucas Anderson, Rothman, Schneider, Soloway & Stern, LLP,
23                                   New York, N.Y.
24
25   Appearing for Appellee:         Monica J. Richards, Assistant United States Attorney for James P.
26                                   Kennedy, Jr., Acting United States Attorney for the Western
27                                   District of New York, Buffalo, N.Y.
28
29

     1
         The Clerk of the Court is directed to amend the caption as above.
 1   Appeal from the United States District Court for the Western District of New York (Skretny, J.).
 2
 3        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 4   AND DECREED that the decision and order of said District Court be and it hereby is
 5   VACATED and REMANDED.
 6
 7           Defendant-Appellant Ricardo Ortiz-Rosa appeals from the December 9, 2016 decision
 8   and order of the United States District Court for the Western District of New York (Skretny, J.)
 9   denying Ortiz-Rosa’s motion for reconsideration of the district court’s denial of his second
10   motion to reduce his sentence pursuant to 18 U.S.C. § 3582. We assume the parties’ familiarity
11   with the underlying facts, procedural history, and specification of issues for review.
12
13           “Where, as here, a defendant seeks a sentence reduction based on a retroactive Guidelines
14   amendment, a district court must determine (1) whether the defendant is eligible for a reduction
15   pursuant to 18 U.S.C. § 3582(c)(2), and (2) whether a reduction is warranted in light of the
16   factors listed in 18 U.S.C. § 3553(a).” United States v. Leonard, 844 F.3d 102, 106-07 (2d Cir.
17   2016) (citing Dillon v. United States, 560 U.S. 817, 826 (2010)). “Because the initial eligibility
18   question … depends on statutory interpretation, our review is de novo.” Id. at 107 (citing United
19   States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009)).
20
21           Ortiz-Rosa contends that he is eligible for sentencing modification pursuant to Section
22   3582, in light of Amendment 782 to the United States Sentencing Guidelines, made retroactive
23   by Amendment 788, which lowered the applicable Guidelines calculations for most drug
24   offenders. This is the second time Ortiz-Rosa makes this argument. On his first Section 3582
25   motion, the district court found him ineligible for a sentence reduction based on its interpretation
26   of the Supreme Court’s decision in Freeman v. United States, 564 U.S. 522 (2011). On February
27   9, 2016, Ortiz-Rosa appealed the district court’s sentence reduction denial, but on July 12, 2016,
28   stipulated to dismissal of that appeal with prejudice.
29
30           Five months later, on December 14, 2016, this Court decided Leonard, which discussed
31   Freeman’s effect on Section 3582 eligibility. Based on Freeman and Leonard, this Court
32   concluded that Ortiz-Rosa’s co-defendant was eligible for a Section 3582 reduction. See United
33   States v. Areizaga-Rosa, 677 F. App’x 15 (2d Cir. 2017).
34
35           In denying Ortiz-Rosa’s second Section 3582 motion, the district court did not consider
36   the merits of that petition. Instead, it stated that this Court had upheld the determination that
37   Ortiz-Rosa was ineligible for Section 3582 relief on Ortiz-Rosa’s appeal from the denial of his
38   first motion. This was incorrect. In ordering dismissal pursuant to the parties’ stipulation, this
39   Court did not reach the merits of Ortiz-Rosa’s eligibility.
40
41           The government does not contend otherwise. Instead, it contends that Ortiz-Rosa is
42   barred by res judicata from pursuing a second Section 3582 motion based on the same
43   Guidelines amendments. The government had no opportunity to present this res judicata
44   argument below because the district court sua sponte dismissed thirteen days after filing based
45   on its misconstruction of the appellate ruling.
46



                                                      2
 1           We do not here decide whether res judicata is properly invoked in these circumstances to
 2   bar a second Section 3582 petition. “It is a well-established general rule that an appellate court
 3   will not consider an issue raised for the first time on appeal.” United States ex rel. Keshner v.
 4   Nursing Personnel Home Care, 794 F.3d 232, 234 (2d Cir. 2015) (quoting Greene v. United
 5   States, 13 F.3d 577, 586 (2d Cir. 1994)) (brackets omitted). Nor do we decide whether a
 6   stipulated dismissal of an appeal of the denial of such a petition based on ineligibility precludes a
 7   defendant from pursuing a second Section 3582 motion in the particular circumstances of this
 8   case. We conclude only that the district court’s denial of Ortiz-Rosa’s second motion must be
 9   vacated because it rests on a misapprehension that this Court reached the merits of Ortiz-Rosa’s
10   first appeal. We remand for the district court to reconsider Ortiz-Rosa’s second Section 3582
11   motion in light of the fact that our dismissal order, although with prejudice, expressed no view
12   on the merits. All parties should be afforded an opportunity to be heard.
13
14           Accordingly, the order of the district court regarding Ortiz-Rosa’s eligibility for Section
15   3582 relief hereby is VACATED and the case is REMANDED for further proceedings consistent
16   with this order.
17
18                                                         FOR THE COURT:
19                                                         Catherine O’Hagan Wolfe, Clerk
20




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