09-2509-cr
United States v. Henderson

                                    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 15th day of October, two thousand and ten.

PRESENT:

          JOHN M. WALKER, JR.,
          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
                        Circuit Judges.

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UNITED STATES OF AMERICA,

                               Appellee,

          v.                                                                               No. 09-2509-cr

OLANJE J. CARPENTER, ALSO KNOWN AS SEALED DEFT. 2, ALSO KNOWN AS CARPENTER J. OLANJE,
SHANE D. MYERS, ALSO KNOWN AS SEALED DEFT. 3, ANTHONY HENDERSON, ALSO KNOWN AS
SEALED DEFT. 4, DORAIN C. HOWARD JR., CARL J. MARSHALL III, ALSO KNOWN AS CJ, MICHAEL A.
NEMBHARD, ALSO KNOWN AS BIG MIKE, ALSO KNOWN AS SEALED DEFT. 1, ALSO KNOWN AS MICHAEL
JOHNSON,

                               Defendants,

MARVIN E. HENDERSON, ALSO KNOWN AS SEALED DEFT. 1,

                                Defendant-Appellant
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FOR DEFENDANT-APPELLANT:                                  Stephanie M. Carvlin, New York, NY.

FOR GOVERNMENT-APPELLEE:                                  Paul D. Silver, Assistant United States
                                                          Attorney for the Northern District of New
                                                          York (Richard S. Hartunian, United States
                                                          Attorney, on the brief, Grant C. Jaquith, of
                                                          counsel), Albany, NY.


       Appeal from a judgment of the United States District Court for the Northern District of New
York (Norman A. Mordue, Chief Judge).


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

        Defendant-Appellant Marvin Henderson (“defendant”) appeals from the June 5, 2009 final
order of the United States District Court for the Northern District of New York denying his motion
for resentencing pursuant to 18 U.S.C. § 3582(c)(2).1 We assume the parties’ familiarity with the
facts and procedural history of this action.

       We review a question of statutory interpretation de novo. See United States v. Williams, 551 F.3d
182, 185 (2d Cir. 2009).

      “A district court may not generally modify a term of imprisonment once it has been
imposed.” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007). An exception is available,
however, under § 3582(c)(2), when the Sentencing Commission amends the United States




        1
            Section 3582(c)(2) reads, in relevant part:

                  [A district court] may not modify a term of imprisonment once it has been imposed
                  except . . . (2) 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 pursuant to 28 § U.S.C. 994(o), [or] upon motion of the
                  defendant . . . the court may reduce the term of imprisonment, after considering the
                  factors set forth in section 3553(a) to the extent that they are applicable, if such a
                  reduction is consistent with applicable policy statements issued by the Sentencing
                  Commission.

18 U.S.C. § 3582(c).

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Sentencing Guidelines.2 “Section 3582(c)(2)’s text, together with its narrow scope, shows that
Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a
plenary resentencing proceeding.” Dillon v. United States, ___U.S.___, 130 S.Ct. 2683, 2691 (2010);
see also U.S.S.G. § 1B1.10(a)(3) (“[P]roceedings under 18 U.S.C. § 3582(c)(2) and this policy
statement do not constitute a full resentencing of the defendant.”). In determining whether an
amended guideline range would have been applicable to the defendant if the amendment had been in
effect at the time of sentencing, “the court shall substitute only the amendments [listed in U.S.S.G. §
1B1.10(c)] for the corresponding guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application decisions unaffected.” U.S.S.G. §
1B1.10(b)(1).

        District courts are constrained in their ability to modify a sentence under § 3582(c)(2) if the
court has imposed a statutory mandatory minimum sentence. See Williams, 551 F.3d at 186 (noting
that the Sentencing Commission’s policy statement prohibits sentence reductions if the amendment
“‘does not have the effect of lowering the defendant’s applicable guideline range because of the
operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment)’” (quoting U.S.S.G. § 1B1.10, application note 1, subsection 1(a) (emphasis added))).
The District Court correctly concluded that, under Williams, it could not modify defendant’s
sentence under § 3582(c)(2) following the 2007 amendments of the crack-cocaine sentencing
guidelines, because it had imposed a statutory mandatory minimum sentence.

        We also reject defendant’s claim that his statutory mandatory minimum sentence can be
modified under § 3582(c)(2) following the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000). It is
clear that the rule of Apprendi is not an amendment promulgated by the Sentencing Commission and
thus cannot be considered an amendment for § 3582(c)(2) purposes. If we allowed a § 3582 motion
for sentence reduction on Apprendi grounds, we would violate the letter and spirit of the statute.
This judgment is consistent with United States v. Mock, 612 F.3d 133 (2d Cir. 2010), in which we held
that § 3582(c)(2) does not provide a basis for this Court or a district court to hear a claim that
procedural error occurred at a defendant’s original sentencing. It is also consistent with the
judgment of all other Courts of Appeals that have reached this issue with regard to an Apprendi
challenge. See United States v. Lafayette, 585 F.3d 435, 439 (D.C. Cir. 2009) (“[T]he proper vehicle for
[defendant’s] . . . Apprendi arguments is a petition under 28 U.S.C. § 2255.”); United States v. Paulk,
569 F.3d 1094, 1096 (9th Cir. 2009) (“[W]e . . . reject [defendant’s] argument that the mandatory
minimum could be avoided on resentencing [pursuant to § 3582(c)(2)] due to the operation of
[Apprendi].”); United States v. McBride, 283 F.3d 612, 616 (3d Cir. 2002) (finding that defendant’s


        2
         Under Section 994(o), “[t]he [Sentencing] Commission periodically shall review and revise,
in consideration of comments and data coming to its attention, the guidelines.” 28 U.S.C. § 994(o).

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“Apprendi argument was independent of and unrelated to any change in the Guidelines and was,
therefore, outside the scope of a sentence modification under § 3582”); United States v. Smith, 241
F.3d 546, 548 (7th Cir. 2001) (observing that defendant’s Apprendi challenge is “not authorized by
§ 3582(c), for it is unrelated to any change in the Sentencing Guidelines”).

                                          CONCLUSION

       The judgment of the District Court as to all claims is AFFIRMED.

                                               FOR THE COURT,

                                               Catherine O’Hagan Wolfe, Clerk of Court




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