09-4086-cr
U.S. v. Price

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the thirtieth day of August, two thousand and ten.

PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
                               Circuit Judges.
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UNITED STATES OF AMERICA ,

                     Appellee,

                     -v.-                                                                  No. 09-4086-cr

ROBERT PRICE , also known as Bam, also known as Gus,

                     Defendant-Appellant.
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FOR DEFENDANTS-APPELLANT:                                     RANDALL UNGER (Elizabeth E. Macedonio, on the brief),
                                                              Bayside, NY.

FOR APPELLEE:                                                 JAMES LOONAM , Assistant United States Attorney
                                                              (Benton J. Campbell, United States Attorney, on the brief;
                                                              Berit W. Berger, Emily Berger, and Daniel Silver,
                                                              Assistant United States Attorneys, of counsel), United States
                                                              Attorney’s Office for the Eastern District of New York,
                                                              Brooklyn, NY.



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       Appeal from a September 25, 2009 amended judgment of the United States District Court for
the Eastern District of New York (Nicholas G. Garaufis, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.
         Defendant-appellant Robert Price appeals from an amended judgment of the District Court
entered on September 25, 2009, denying his request for resentencing pursuant to 18 U.S.C. § 3582(c)(2).
On appeal, Price contends that the District Court’s refusal to reduce a previously imposed sentence in
light of a retroactive amendment to the Sentencing Guidelines resulted in a sentence that was
procedurally and substantively unreasonable.

        We assume the parties’ familiarity with the underlying facts and procedural history of the case,
but a brief review is appropriate. On May 20, 2005 the District Court sentenced Price principally to two
concurrent terms of life imprisonment for conspiring to distribute and to possess with the intent to
distribute fifty grams or more of cocaine base and one kilogram of more of heroin in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A) (count one) and possessing with intent to distribute heroin in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (count twenty-one).1 Price filed a timely appeal. In an
unpublished decision, we affirmed the judgment of the District Court but remanded Price’s case for
resentencing on count twenty-one because § 841(b)(1)(C) imposes a statutory maximum term of 20
years’ imprisonment. United States v. Price, 204 F. App’x 993 (2d Cir. 2006).

        Between the District Court’s two judgments of conviction, the Sentencing Commission amended
the Guidelines twice: once to reduce the base offense level associated with cocaine base, U.S.S.G. Supp.
App. C, Amdt. 706 (effective Nov. 1, 2007), and a second time to make that amendment retroactive,
U.S.S.G. Supp. App. C, Amdt. 713 (effective Mar. 3, 2008). See generally United States v. Dillon, 130 S. Ct.
2683, 2688 (2010). At Price’s second sentencing hearing, he asked the District Court to reduce his
sentence for count one pursuant to 18 U.S.C. § 3582(c)(2), which permits reductions “in the case of a
defendant who has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” Price’s motion was denied. On September
25, 2009, the District Court entered an amended judgment of conviction, sentencing Price principally to
life imprisonment on count one and to twenty-years, the statutory maximum, on count twenty-one, to
run concurrently. Price again filed a timely appeal.




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          Price was charged with four counts, and convicted of three counts, in a twenty-one count
 indictment against thirteen individuals who were alleged to be a part of a narcotics trafficking
 organization that sold large quantities of cocaine base and heroin in the Gowanus public housing
 development in Brooklyn, New York.
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        We review a district court’s denial of a motion to reduce a sentence pursuant to 18 U.S.C.
§ 3582(c)(2) for “abuse of discretion.” United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009); cf. Sims v.
Blot, 534 F.3d 117, 132 (2d Cir. 2008) (“A district court has abused its discretion if it based its ruling on
an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a
decision that cannot be located within the range of permissible decisions.” (alteration, citations, and
quotation marks omitted)). Excluding the quantity of cocaine base, the quantity of heroin alone for
which Price was convicted on count one is sufficient to justify a life sentence. As a result, because
applying the retroactive amendment to the Guidelines does not result in a lower base offense level, we
agree with the District Court that Price is not eligible for a sentence reduction under 18 U.S.C. §
3582(c)(2).

        Finally, Price contends on appeal that U.S.S.G. § 1B.1.10, which instructs federal courts not to
“reduce the defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2)” below “the minimum of the
amended guideline range,” is unconstitutional. He is incorrect. The Supreme Court has concluded that
§ 1B.1.10’s binding requirements on sentencing judges do not run afoul of the Sixth Amendment. See
United States v. Dillon, 130 S. Ct. 2683, 2687 (2010); see also United States v. Mock, — F.3d —, No. 09-4154-
cr, 2010 WL 2802553, at *3 (2d Cir. July 19, 2010). We therefore cannot say that Price’s amended
sentence, which was within the amended Guidelines range, was procedurally or substantively
unreasonable.



                                              CONCLUSION

        We have considered each of Price’s arguments on appeal and find them to be without merit. For
the reasons stated above, we AFFIRM the judgment of the District Court.

                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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