     06-5193
     Cortorreal v. USA

 1                                UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                          August Term, 2006
 5
 6   (Submitted: April 18, 2007                                              Decided: May 3, 2007)
 7                                        Docket No. 06-5193-cr
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 9
10                                     ________________________
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12                                       HERMINIO CORTORREAL,
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14                                                                                           Petitioner,
15
16                                                — v. —
17
18                                     UNITED STATES OF AMERICA ,
19
20                                                                                         Respondent.
21
22                                     ________________________
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24
25   Before:
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27                         WALKER, STRAUB, and B.D. PARKER, Circuit Judges.
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29                                     ________________________

30           Herminio Cortorreal moves for leave to proceed in forma pauperis in his appeal from the
31   order of the United States District Court for the Southern District of New York (Jed S. Rakoff,
32   District Judge), denying his motion for resentencing. Because the District Court granted
33   Cortorreal leave to proceed in forma pauperis, we deny his motion as unnecessary. Further,
34   because we find that Cortorreal’s appeal lacks a basis in law or fact, we dismiss it as frivolous.
35                                      ________________________
36
37   HERMINIO CORTORREAL, pro se, Fort Dix, NJ, for Petitioner.
38
39   BOYD M. JOHNSON, United States Attorney’s Office, Southern District of New York, NY, for
40   Respondent.
41
42                                     ________________________
 1   Per Curiam:
 2
 3          In May 2006, Herminio Cortorreal, pro se, filed in the District Court a motion for

 4   resentencing in which he argued that he was entitled to resentencing under 18 U.S.C. §

 5   3582(c)(2), and the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

 6   (2005). Specifically, Cortorreal argued that, because Booker had constituted both an

 7   implicit lowering of the United States Sentencing Guidelines (“Guidelines”) and a new

 8   rule of law that was retroactive to cases on collateral review, he was entitled to a new

 9   sentence. In July 2006, the District Court issued an order denying the motion, finding,

10   inter alia, that (1) because the United States Sentencing Commission had not lowered the

11   Guidelines range applicable to Cortorreal’s case, he was not entitled to resentencing

12   under Section 3582(c)(2); and (2) Booker did not apply retroactively to Cortorreal’s case.

13   Thereafter, Cortorreal filed a timely notice of appeal from the District Court decision.

14   Cortorreal now moves this Court for leave to proceed in forma pauperis.

15          As a preliminary matter, review of the District Court docket sheet indicates that

16   Cortorreal received counsel pursuant to the Criminal Justice Act, which would have

17   required him to receive in forma pauperis status in the District Court. There is no

18   indication that the District Court revoked Cortorreal’s in forma pauperis status at any

19   time during the proceedings. Accordingly, Cortorreal’s motion for leave to proceed in

20   forma pauperis is denied as unnecessary.

21          Further, independent of the in forma pauperis motion, this Court must dismiss

22   Cortorreal’s appeal if it is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is



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 1   frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

 2   490 U.S. 319, 325 (1989).

 3          We have not previously determined the appropriate standard of review to apply to

 4   a district court decision denying a motion under Section 3582(c)(2). Those circuits that

 5   have addressed the issue have determined that such a decision should be reviewed for

 6   abuse of discretion. See, e.g., United States v. Rodriguez-Pena, 470 F.3d 431, 432 (1st

 7   Cir. 2006) (per curiam); United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005)

 8   (per curiam). We need not decide the standard of review here, however, because

 9   Cortorreal’s appeal lacks merit under any standard of review, even in light of the

10   arguments raised in his response to the Government’s opposition, because the District

11   Court properly determined that Cortorreal did not merit resentencing under either Section

12   3582(c)(2) or Booker. Accordingly, we find that Cortorreal’s appeal is frivolous.

13          A district court may not generally modify a term of imprisonment once it has been

14   imposed. See United States v. Thomas, 135 F.3d 873, 876 (2d Cir. 1998) (“Congress has

15   imposed stringent limitations on the authority of courts to modify sentences, and courts

16   must abide by those strict confines.”). However, under 18 U.S.C. § 3582(c)(2), a court

17   may reduce the term of imprisonment of a “defendant who has been sentenced to a term

18   of imprisonment based on a sentencing range that has subsequently been lowered by the

19   Sentencing Commission pursuant to 28 U.S.C. § 994(o).” Section 994(o) requires the

20   Sentencing Commission to “periodically . . . review and revise . . . the guidelines

21   promulgated pursuant to” the duties of the Sentencing Commission.



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 1          Cortorreal argues that, because Booker rendered the Guidelines advisory, it

 2   implicitly lowered the sentencing range applicable to his case, and, thus, constituted

 3   sufficient reason for relief under Section 3582(c)(2). We have not yet addressed whether

 4   the decision in Booker can serve as the basis for a motion to reduce a sentence pursuant to

 5   Section 3582(c)(2). However, those courts that have addressed the issue have determined

 6   that, although Booker affected the application of the Guidelines, because the decision was

 7   not a guideline amendment promulgated by the Sentencing Commission, the terms of

 8   Section 3582(c)(2) did not apply. See, e.g., United States v. Price, 438 F.3d 1005, 1007

 9   (10th Cir. 2006); United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005)

10   (“Booker is a Supreme Court decision, not a retroactively applicable guideline

11   amendment by the Sentencing Commission. Therefore, Booker is inapplicable to §

12   3582(c)(2) motions.”). We follow our sister circuits in holding that, because Booker was

13   not a guideline amendment promulgated by the Sentencing Commission, the terms of

14   Section 3582(c)(2) do not apply, and therefore the Booker decision cannot be the basis for

15   a Section 3582(c)(2) motion to modify a sentence. Accordingly, the District Court

16   properly denied Cortorreal’s motion to the extent that it sought a reduction in his sentence

17   pursuant to Section 3582(c)(2).

18          Finally, to the extent that Cortorreal sought retroactive application of Booker to

19   his case, the District Court also properly denied the motion. We have previously

20   determined that Booker does not apply retroactively to cases, such as this one, on

21   collateral review. See Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005).



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1         For the foregoing reasons, Cortorreal’s motion to proceed in forma pauperis is

2   DENIED and his appeal is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

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