         12-1594-cr
         United States v. Myers

                                  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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 14th day of May, two thousand thirteen.
 5
 6       PRESENT: ROBERT D. SACK,
 7                RICHARD C. WESLEY,
 8                SUSAN L. CARNEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                        -v.-                                              No. 12-1594-cr
18
19       SHANE D. MYERS,
20
21                                     Defendant-Appellant,
22
23       MARVIN E. HENDERSON, OLANJE J. CARPENTER,
24       ANTHONY HENDERSON, DORIAN C. HOWARD, JR.,
25       CARL J. MARSHALL, III, MICHAEL A.
26       NEMBHARD,
27
28                                     Defendants.
29
30
31       FOR APPELLANT:                Ryan Thomas Truskoski, Harwinton, CT.
32
33
 1   FOR APPELLEES:     Rajit S. Dosanjh, Assistant United States
 2                      Attorney (Grant Jaquith, Assistant United
 3                      States Attorney, on the brief), for
 4                      Richard S. Hartunian, United States
 5                      Attorney for the Northern District of New
 6                      York.
 7
 8        Appeal from the United States District Court for the
 9   Northern District of New York (Mordue, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the order is AFFIRMED.

13       Defendant-appellant Shane D. Myers appeals from the

14   April 11, 2012 denial of his motion for sentence reduction

15   pursuant to 18 U.S.C. § 3582(c)(2) and from the district

16   court’s refusal to appoint him counsel.   We review the issue

17   of whether Myers’s “original sentence was based on a

18   sentencing range that was subsequently lowered by the

19   Sentencing Commission” de novo, because “[t]he underpinning

20   of the district court’s ruling [was] statutory

21   interpretation.”   United States v. Williams, 551 F.3d 182,

22   185 (2d Cir. 2009).   We review the district court’s decision

23   regarding appointment of counsel for abuse of discretion.

24   United States v. Reddick, 53 F.3d 462, 465 (2d Cir. 1995).

25   We assume the parties’ familiarity with the facts and

26   procedural history.

27


                                   2
1        In 1998, Myers received a sentence of 240 months, the

2    statutory mandatory minimum at the time for his conviction

3    for crack cocaine offenses under 21 U.S.C. § 841(b)(1)(A).

4    In 2011, he moved for reduction of his sentence pursuant to

5    18 U.S.C. § 3582(c)(2), which provides that a court may

6    modify a sentence “in the case of a defendant who has been

7    sentenced to a term of imprisonment based on a sentencing

8    range that has subsequently been lowered by the Sentencing

9    Commission.”   The district court denied Myers’s motion,

10   stating that he was “not eligible for a reduction as he was

11   sentenced at the statutory mandatory minimum sentence.”

12   Joint App’x 71.

13       Myers argues that United States v. Booker, 543 U.S. 220

14   (2005), allows a district court to employ the sentencing

15   factors described in 18 U.S.C. § 3553(a) to sentence a

16   defendant below a mandatory minimum.   We have held, however,

17   that “the general sentencing provisions in § 3553(a) give

18   way to specific mandatory sentencing provisions elsewhere in

19   the criminal code.”   United States v. Carter, 696 F.3d 229,

20   232 (2d Cir. 2012) (emphasis in original).   We have also

21   held that “[o]nce the mandatory minimum applie[s],” a

22   defendant’s sentence is “no longer ‘based on a sentencing


                                   3
1    range that has subsequently been lowered by the Sentencing

2    Commission,’” Williams, 551 F.3d at 185 (quoting 18 U.S.C. §

3    3582(c)(2)), because the statute, rather than the Guidelines

4    alone, determines the length of the sentence.   We therefore

5    affirm the district court’s denial of Myers’s § 3582(c)(2)

6    motion.

7        With regard to Myers’s request for appointment of

8    counsel, we have held that a defendant does not have a right

9    to counsel under the Sixth Amendment in a § 3582(c)(2)

10   proceeding because that right “extends only through the

11   defendant’s first appeal.”   Reddick, 53 F.3d at 464.

12   Reddick also forecloses Myers’s argument that he has a

13   statutory right to counsel under 18 U.S.C. § 3006A(c).      Id.

14   at 465.

15       Myers also argues that the Fifth Amendment required the

16   appointment of counsel to ensure the “fundamental fairness”

17   of the proceedings.   We have held, however, that the merits

18   of a § 3582(c)(2) motion will be a “significant factor in

19   the exercise of [the district court’s] discretion” in

20   determining whether to appoint counsel.   Id. at 465 n.2.

21   “In this case, where it was readily ascertainable from the

22   record that Appellant was ineligible for a reduction in


                                   4
1    sentence, the court did not abuse its discretion by denying

2    his motion for appointment of counsel.”   United States v.

3    Cirineo, 372 F. App’x 178, 179-80 (2d Cir. 2010).

4         We have considered all of Myers’s arguments and find

5    them to be without merit.   For the reasons stated above, the

6    judgment of the district court is AFFIRMED.

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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