                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2009

USA v. Hector Roldan-Luna
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3063




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 08-3063


                           UNITED STATES OF AMERICA

                                            v.

                        HECTOR ROLDAN-LUNA, a/k/a Santo

                                   Hector Roldan-Luna,*
                                            Appellant
                                       ________

                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (D.C. Criminal No.02-cr-00087-9)
                     District Judge: Honorable Thomas I. Vanaskie
                                      __________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  on March 23, 2009

              Before: RENDELL, AMBRO, and JORDAN, Circuit Judges.

                                  (Filed: April 7, 2009)
                                       __________

                              OPINION OF THE COURT
                                    __________

______________

    * We note that Appellant’s last name has been spelled two different ways within the
record: “Roldan-Luna” and “Roland-Luna.” We use “Roldan-Luna” in our Opinion and
Judgment, as it is the spelling used throughout the docket of the District Court case from
which this appeal arises.
RENDELL, Circuit Judge.

       On April 23, 2004, Appellant Hector Roldan-Luna pled guilty before the District

Court for the Middle of Pennsylvania to a charge of conspiracy to distribute and possess

with intent to distribute cocaine base (“crack”) in violation of 21 U.S.C. § 846. He was

sentenced on November 23, 2004 to 210 months in prison.

       After the passage of Amendment 706 to the United States Sentencing Guidelines,

Appellant moved to have the District Court reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2). The District Court decided that Appellant’s subsequent guilty plea and

sentencing for third degree murder and criminal attempt to commit third degree murder

weighed against a sentence reduction. We will affirm the District Court’s Order denying

the sentence reduction motion.1

       After Appellant pled guilty to the drug charge in the District Court, he pled guilty

in state court to third degree murder and attempt to commit third degree murder for

shooting two men connected with a rival drug trafficking operation. These charges

resulted in an 8-18 year prison sentence.




  1
   We have jurisdiction to review a District Court’s denial of sentence reduction under 28
U.S.C. § 1291. United States v. Idone, 38 F.3d 693, 696 (3d Cir. 1994). We exercise
plenary review over the District Court’s legal conclusions. Id. We review a District
Court decision to deny a reduction in sentence under 18 U.S.C. § 3582(c)(2) for abuse of
discretion. See United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2007).

                                             2
       Thereafter, Appellant filed a motion under 18 U.S.C. § 3582(c)(2), which allows

for the ex post reduction of a sentence if it was based on a sentencing range that is later

lowered by the Sentencing Commission.

       The District Court considered Appellant’s subsequent conviction for murder and

attempted murder in light of public safety factors, a consideration discussed in

Application Note 1(b)(ii) to § 1B1.10 of the sentencing guidelines. The District Court

denied Appellant’s motion for a sentence reduction after considering these public safety

factors, and noting that the 210 month sentence still fell within the revised sentencing

range, albeit at the top of the new range instead of the bottom of the original range.

       A district court “may reduce the term of imprisonment, after considering the

factors set forth in section 3553(a),” if the Sentencing Commission subsequently reduces

the applicable sentencing range. 18 U.S.C. § 3582(c)(2) (emphasis added). Amendment

706 generally has the effect of “decreas[ing] by two levels the base offense levels for

crack cocaine offenses.” United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008). When

considering a sentence reduction under 18 U.S.C. § 3582(c)(2), the District Court shall

consider a number of factors, including public safety concerns such as the “nature and

seriousness of the danger to any person or the community that may be posed by a

reduction . . . .” U.S. Sentencing Guidelines Manual § 1B1.10 cmt. n.1(B)(ii) (2008).

       Appellant had been sentenced to 210 months in prison, the minimum sentence

within the original recommended 210-262 month guideline range. After applying the



                                              3
Amendment 706 reduction, the recommended sentencing range for Appellant’s crime of

conviction would be 168-210 months. The District Court considered Appellant’s

subsequent guilty plea to murder in light of the Application Note 1(B)(ii) public safety

concerns, and denied Appellant’s motion to reduce sentence.

       Appellant argues that the District Court somehow treated the public safety

considerations of Application Note 1(B)(ii) as requiring a mandatory sentence, and, as a

result, denied his request for sentence reduction. This, he urges, violates the Supreme

Court’s holding that the sentencing guidelines are advisory only. See Kimbrough v.

United States, 552 U.S. ---; 128 S.Ct. 558, 564 (2007). As support, Appellant points to

certain language from the District Court Order denying his request for reduction:

“[C]onsideration of public safety factors, as required by Application Note 1(b)(ii) to

§ 1B1.10 . . . militates against a reduction . . . .” (App. 34-35 (emphases added).) This

lacks merit. The District Court considered certain factors, including public safety

concerns, in making its ultimate discretionary sentencing decision, but clearly understood

this was discretionary, and decided that Appellant’s murder conviction counseled against

any reduction in sentence. In light of the District Court’s stated reasons, and considering

the fact that Appellant’s 210 month sentence still falls within the revised guideline range,

we cannot say that the District Court abused its discretion in denying Appellant’s motion

to reduce sentence.




                                             4
      In light of the foregoing, we conclude that the District Court was within its

discretion to deny Appellant’s motion to reduce sentence, and we will accordingly

AFFIRM the District Court’s Order.




                                            5
