09-1406-cr
USA v. Chavez

                                    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.

       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 19th day of January, two thousand and ten.

PRESENT:

          AMALYA L. KEARSE ,
          JOSÉ A. CABRANES,
                 Circuit Judges,
          RICHARD K. EATON ,*
                 Judge.

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 09-1406-cr

BOLIVAR AVILA CHAVEZ , a/k/a Boli,

                               Defendant-Appellant.

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          *
          The Honorable Richard K. Eaton, of the United States Court of International Trade,
sitting by designation.

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FOR APPELLANT:                          DAVID A. LEWIS, Federal Defenders of New York, Inc., New
                                        York, NY.

FOR APPELLEE:                           SYLVIA S. SHWEDER , Assistant United States Attorney (Benton
                                        J. Campbell, United States Attorney, and Emily Berger, Assistant
                                        United States Attorney, on the brief), Office of the Untied States
                                        Attorney for the Eastern District of New York, Brooklyn, NY.

        Appeal from a March 19, 2009 order of the United States District Court for the Eastern
District of New York (Raymond J. Dearie, Chief Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.

       Appellant Bolivar Avila Chavez entered into a so-called “binding” plea agreement with the
United States under Federal Rule of Criminal Procedure 11(c)(1)(C) and, in accordance with that
agreement, pleaded guilty in the District Court to crimes relating to the distribution of crack cocaine.
The District Court accepted the Rule 11(c)(1)(C) agreement and sentenced appellant to a 144-month
term of imprisonment as called for in the agreement.

        Following appellant’s conviction, the United States Sentencing Commission amended the
United States Sentencing Guidelines by instituting a two-level, retroactive reduction to the offense level
for crimes relating to crack cocaine. See United States v. Main, 579 F.3d 200, 202 (2009). Appellant then
moved in the District Court for a reduction of his sentence under 18 U.S.C. § 3582(c)(2), which
provides that a court may modify a term of imprisonment “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.” The District Court denied appellant’s motion.

       On appeal, appellant claims that the District Court erred by declining to reduce his sentence
under 18 U.S.C. § 3582(c)(2). We disagree and affirm the District Court’s order.

         Here, the Rule 11(c)(1)(C) agreement provided for a “specific sentence of 12 years (144
months)” and further provided that “[t]he defendant’s sentence, other than the agreed upon term of
incarceration, is governed by the United States Sentencing Commission Guidelines” (emphasis added).
At appellant’s sentencing hearing, appellant’s attorney argued that the District Court should adhere to
the 144-month sentence set forth in the Rule 11(c)(1)(C) agreement “as opposed to the higher sentence
that was recommended by the Probation Department.” The District Court decided to “abide by the
terms of [the Rule 11(c)(1)(C)] agreement and impose the agreed-upon sentence.” Appellant’s
sentence, therefore, was “‘based on’ his Rule 11(c)(1)(C) agreement with the government, and not a
sentencing range that the Sentencing Commission subsequently lowered.” Main, 579 F.3d at 203. As a
result, “the district court was without authority to reduce the sentence pursuant to 18 U.S.C.
§ 3582(c)(2).” Id.

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                                        CONCLUSION

        We have considered all of appellant’s arguments on appeal and have found them to be
meritless. For the foregoing reasons, the March 19, 2009 order of the District Court is AFFIRMED.


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

                                            By _______________________________




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