08-3244-cr
United States v. Moulton


                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 28 th day of May, two thousand ten.

PRESENT:             JON O. NEWMAN,
                     CHESTER J. STRAUB,
                     REENA RAGGI,
                                Circuit Judges.

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UNITED STATES OF AMERICA,
                        Appellee,
               v.                                                                      No. 08-3244-cr

GARY MOULTON,
                                                   Defendant-Appellant.
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FOR APPELLANT:                                     Barry D. Leiwant, Federal Defenders of New York, Inc.,
                                                   Appeals Bureau, New York, New York.

FOR APPELLEE:                                      J.E. Shreve Ariail, Assistant United States Attorney (Jo
                                                   Ann M. Navickas, Assistant United States Attorney, on
                                                   the brief), for Benton J. Campbell, United States
                                                   Attorney, Eastern District of New York, Brooklyn, New
                                                   York.

          Appeal from the United States District Court for the Eastern District of New York (I.
Leo Glasser, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s order entered on June 23, 2008, is AFFIRMED.

       Gary Moulton was convicted in 1990, after a jury trial, of possession with intent to

distribute more than five grams of cocaine base (“crack cocaine”) in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). The district court sentenced Moulton as a career offender to 262

months’ imprisonment. See U.S.S.G. § 4B1.1. Moulton here appeals from the denial of his

pro se motion for a sentence reduction. Because this appeal turns on an issue of statutory

interpretation, we review the district court’s decision de novo. See United States v.

Williams, 551 F.3d 182, 185 (2d Cir. 2009). In doing so, we assume the parties’ familiarity

with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

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

imposed.” United States v. McGee, 553 F.3d 225, 226 (2d Cir. 2009) (alteration and internal

quotation marks omitted). Under 18 U.S.C. § 3582(c)(2), however, a district court may

reduce a sentence if the defendant “has been sentenced to a term of imprisonment based on

a sentencing range that has subsequently been lowered by the Sentencing Commission . . .

if such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” Now represented by counsel, Moulton submits that Amendment 706, which

provides a two-level reduction in base offense levels for crack cocaine offenses and was

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made retroactive by Amendment 713, see United States v. McGee, 553 F.3d at 226 & n.1,

permitted the district court to reduce his sentence. Moulton acknowledges that, because he

was sentenced as a career offender, Amendment 706 would not have the effect of lowering

the applicable Guidelines range for his sentence. See U.S.S.G. § 1B1.10(a)(2)(B) (providing

that sentence reduction “is not consistent with this policy statement and therefore is not

authorized under 18 U.S.C. § 3582(c)(2)” if, inter alia, Amendment 706 “does not have the

effect of lowering the defendant’s applicable guideline range”). Nevertheless, he maintains

that he is entitled to a reduction because his sentence was, in part, “based on” the now-

amended crack cocaine Guidelines. 18 U.S.C. § 3582(c)(2).

       The argument is foreclosed by United States v. Martinez, 572 F.3d 82 (2d Cir. 2009),

decided after briefs were submitted in this case. Martinez holds that a defendant whose

sentencing range is based on the career offender Guideline, see U.S.S.G. § 4B1.1, is not

eligible for a sentence reduction under the amended crack cocaine Guidelines, see United

States v. Martinez, 572 F.3d at 84-85. Those of our sister circuits to consider the issue have

similarly ruled. See United States v. Munn, 595 F.3d 183, 187 & n.7 (4th Cir. 2010); United

States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009); United States v. Perdue, 572 F.3d 288,

293 (6th Cir. 2009); United States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009); United States

v. Caraballo, 552 F.3d 6, 10 (1st Cir. 2008); United States v. Sharkey, 543 F.3d 1236, 1239

(10th Cir. 2008); United States v. Liddell, 543 F.3d 877, 882-83 & n.3 (7th Cir. 2008);

United States v. Moore, 541 F.3d 1323, 1327-28 (11th Cir. 2008); United States v. Thomas,

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524 F.3d 889, 890 (8th Cir. 2008); see generally United States v. McGee, 553 F.3d at 227

(noting “consensus” that defendant sentenced under career offender Guideline does not

qualify for sentencing reduction under crack cocaine amendment). We, therefore, conclude

that the district court correctly denied Moulton’s motion for a sentence reduction.

       We have considered Moulton’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the June 23, 2008 order of the district court.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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