     08-2104-cr
     USA v. Jennings



 1                             UNITED STATES COURT OF APPEALS
 2                                 FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
 8   COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
 9   OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
10   W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
11   APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING
12   A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
13   PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
14   COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
15   W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
16   AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
17   THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
18   REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
19   ORDER W AS ENTERED.
20
21           At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
22   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
23   on the 11th day of December, two thousand and eight.
24
25   PRESENT:          DENNIS JACOBS,
26                                 Chief Judge,
27               GUIDO CALABRESI,
28               DEBRA ANN LIVINGSTON,
29                                 Circuit Judges.
30   ___________________________________________________
31
32   UNITED STATES OF AMERICA,
33
34                                 Appellee,
35
36                     -v.-                                              No. 08-2104-cr
37
38   KEITH JENNINGS,
39
40                                 Defendant-Appellant.
41
42   ___________________________________________________
43
44

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 1   Appearing for Appellee:                       ANDREW T. BAXTER, United States Attorney,
 2                                                 Northern District of New York (John. M. Katko and
 3                                                 Elizabeth S. Riker, Assistant United States
 4                                                 Attorneys, of counsel), Syracuse, N.Y.
 5
 6   Appearing for Defendant-Appellant:  MARSHA R. TAUBENHAUS, New York, N.Y.
 7   ___________________________________________________
 8
 9   UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States
10   District Court for the Northern District of New York (McAvoy, J.), it is hereby ORDERED,
11   ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
12   ___________________________________________________

13          Defendant-Appellant Keith Jennings appeals from a decision and order by the district

14   court for the Northern District of New York (McAvoy, J.) denying his motion for a reduction of

15   his sentence pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the

16   underlying facts, the procedural history of the case, and the issues on appeal.

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

18   imposed[,]” but 18 U.S.C. § 3582(c)(2) provides a limited exception that allows a district court

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

20   imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing

21   Commission [(“Commission”)] . . . .” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir.

22   2007) (per curiam) (internal quotation marks omitted). In 2007 and 2008, the Commission

23   amended the United States Sentencing Guidelines by reducing the recommended Guidelines

24   sentence for offenses involving cocaine base (collectively, the “crack-cocaine amendments”).

25   See, e.g., U.S.S.G. app. C, amend. 706 (2007), as amended by amend. 711; id. amend. 715

26   (2008). The crack-cocaine amendments were made retroactive, subject to certain conditions. See




                                                     -2-
 1   U.S.S.G. § 1B1.10. Relying upon these amendments,1 Jennings filed a motion for a reduced

 2   sentence under § 3582(c)(2) on February 22, 2008. In an order filed on April 15, 2008, the

 3   district court denied the motion after concluding that Jennings was not eligible for relief under

 4   the statute.

 5           We review de novo a district court’s interpretation of 18 U.S.C. § 3582(c)(2) and the

 6   relevant Sentencing Guidelines. See United States v. Main, 579 F.3d 200, 202–03 (2d Cir. 2009).

 7           The government argues that the district court properly denied Jennings’s § 3582(c)(2)

 8   motion because he was sentenced to a mandatory minimum sentence of life imprisonment under

 9   21 U.S.C. § 848(b). Jennings objects that he was convicted under 21 U.S.C. § 848(a), a lesser-

10   included offense that requires a minimum sentence of only 20 years’ imprisonment. He argues

11   that the aggravating elements necessary to sustain a § 848(b) conviction were not found by the

12   jury beyond a reasonable doubt. See United States v. Torres, 901 F.2d 205, 240–41 (2d Cir.

13   1990). We need not decide this issue, however, because Jennings is ineligible for a § 3582(c)(2)

14   sentence reduction on other grounds. The crack-cocaine amendments do not apply to offenses

15   that involve more than 4.5 kg of cocaine base, which is now the highest offense level under

16   U.S.S.G. § 2D1.1. Here, Jennings’s crime of conviction was found to involve 13.6 kg of cocaine

17   base, in addition to 19.0 kg of cocaine and 185.0 kg of marijuana. Because Jennings’s offense

18   involved an amount well above the 4.5 kg threshold, his sentence was not “based on a sentencing

             1
               Jennings’s motion in the district court was made pursuant to Amendment 706, and the
     district court made its decision under that amendment. On appeal, Jennings contends that it is
     Amendment 715, rather than Amendment 706, that is applicable to his case because his charged
     offenses involved marijuana and powder cocaine in addition to cocaine base. The distinction
     between Amendment 706 and 715 is not relevant for the resolution of this appeal. Jennings is
     not eligible for relief under either amendment, and for the same reason.



                                                     -3-
 1   range that has subsequently been lowered” by the Sentencing Commission, and so § 3582(c)(2)

 2   does not apply to him.

 3          We have considered all of Appellant’s remaining arguments and found them to be

 4   without merit. Accordingly, we AFFIRM the judgment of the district court.

 5                                              FOR THE COURT:
 6                                              Catherine O’Hagan Wolfe, Clerk
 7
 8
 9                                              By: _________________________
10




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