12-3685-cr
United States of America v. Pedro Lora



                       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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 16th
day of July, two thousand thirteen.


PRESENT:     JON O. NEWMAN,
             RALPH K. WINTER,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.


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United States of America,
                       Appellee,

                          v.
                                                                  12-3685-cr
Ricardo Leonardo, Yenny Guzman,
                     Defendants,

Pedro Lora, aka Smokey,
            Defendant-Appellant.

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FOR APPELLANT:                           Frank J. Riccio, II, Law Offices of
                                         Frank J. Riccio LLC, Bridgeport, CT.
FOR APPELLEE:                       Jonathan Francis, Assistant United
                                    States Attorney (Sandra S. Glover
                                    and Robert M. Spector, Assistant
                                    United States Attorneys, on the
                                    brief), United States Attorney’s
                                    Office   for    the   District  of
                                    Connecticut, New Haven, CT.


       Appeal   from    the   United       States    District   Court    for   the

District of Connecticut (Covello, J.).

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

DECREED that the order of the District Court is AFFIRMED.

       Defendant–Appellant Pedro Lora appeals from an August 30,

2012, order denying his motion for a sentence reduction under 18

U.S.C. § 3582(c)(2). On September 19, 2005, pursuant to a Federal

Rule of Criminal Procedure 11(c)(1)(C) plea agreement, Lora pled

guilty to one count of conspiracy to possess with the intent to

distribute 50 grams or more of crack cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846.                On October 24,

2011, Lora moved for a § 3582(c)(2) sentence reduction based on

Amendment 750 to the Sentencing Guidelines, which re-promulgated

prior temporary reductions to the base offense levels for crack

cocaine offenses.     See U.S.S.G. App. C., Amend. 750 (2011).

       A court may reduce a defendant’s sentence if he has been

“sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission,”

and if such a reduction is “consistent with applicable policy

statements   issued    by   the   Sentencing        Commission.”    18    U.S.C.


                                       2
§ 3582(c)(2); see Dillon v. United States, 130 S. Ct. 2683, 2691

(2010).      The    District   Court   held    that   because   Lora’s   Rule

11(c)(1)(C) plea agreement did not refer to a guidelines range, his

15-year sentence was not based on an amended guidelines range, and

Lora   was   thus     ineligible   for     §   3582(c)(2)   relief.      The

determination of whether an original sentence was “based on” a

sentencing range that has been lowered by the Sentencing Commission

is a matter of statutory interpretation, and our review is de novo.

United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009) (quoting

§ 3582(c)(2)).       In conducting that review here, we assume the

parties’ familiarity with the facts and record of the prior

proceedings, to which we refer only as necessary to explain our

decision to affirm.

          Lora urges that the Supreme Court’s holding in Freeman v.

United States, 131 S. Ct. 2685 (2011), authorizes a sentence

reduction because his plea agreement expressly refers to, or is at

least “loosely based upon,” the Guidelines.            Appellant Br. at 6;

see Freeman, 131 S. Ct. at 2695-97 (Sotomayor, J., concurring)

(where a defendant is sentenced pursuant to a Rule 11(c)(1)(C)

agreement, a district court has jurisdiction to consider a sentence

reduction only if the agreement makes clear that the basis for a

term of imprisonment is the guidelines range).          The District Court

rejected this argument, but we need not consider it, as we affirm

on a different ground.         Lora’s calculated guidelines range was

based on the finding that he was a career offender, and Amendment

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750   to    the   Guidelines      did     not       affect    his     career      offender

enhancement.          Because    the     amendment      does        not   lower    Lora’s

applicable     guideline      range,     he    is    ineligible       for   a   sentence

reduction.1

           Section 1B1.10 of the Sentencing Guidelines provides that

“[a] reduction in the defendant’s term of imprisonment is not

consistent     with    this     policy    statement          and    therefore      is   not

authorized under 18 U.S.C. § 3582(c)(2) if . . . [an amendment]

does not have the effect of lowering the defendant’s applicable

guideline range.”        U.S.S.G. § 1B1.10(a)(2)(B).                  Amendment 759 to

the Guidelines, effective November 1, 2011, amended the advisory

notes to § 1B1.10 to define the “applicable guideline range” as

“the guideline range that corresponds to the offense level and

criminal history category determined pursuant to § 1B1.1(a), which

is determined before consideration of any departure provision in

the Guidelines Manual or any variance.”                       See U.S.S.G. App. C,

Amend. 759 (2011); U.S.S.G. § 1B1.10 cmt. n.1(A).

           At Lora’s sentencing on January 17, 2006, the Court adopted

the offense level and criminal history category from the Probation

Department’s Pre-Sentence Report (“PSR”).                          The PSR included a

career offender enhancement pursuant to U.S.S.G. § 4B1.1, resulting

in a total offense level of 35.                Based on this offense level and

      1
       “[I]t is long-settled law that we may affirm the judgment of
the District Court on any ground that the record supports.”
Carpenter v. Republic of Chile, 610 F.3d 776, 781 n.6 (2d Cir.
2010).

                                           4
a criminal history category of VI, Lora’s sentencing range was 292

to   365    months’     imprisonment.       The   Court    departed    from   the

Guidelines and the plea agreement and sentenced Lora to a term of

11 years’ imprisonment.         Following an initial appeal not relevant

here, on remand, the District Court sentenced Lora to 15 years’

imprisonment in conformity with the plea agreement.

           The   fact   that   the   District     Court   originally   departed

downward from both the Guidelines and the minimum sentence in the

plea agreement has no effect on Lora’s ineligibility for a sentence

reduction.       Prior to Amendment 759's definition of “applicable

guideline range,” this Court had held that where a sentencing judge

departs from a range computed under the career offender guideline

to a lower range, the post-departure range was the “guideline range

applicable” to a defendant for the purposes of § 1B1.10.                      See

United States v. Rivera, 662 F.3d 166, 177 (2d Cir. 2011).               But our

decision in Rivera acknowledged that the then-proposed Amendment

759, once effective, would “prescribe the precise construction of

‘applicable guideline range’ that we refuse to give the existing

guideline, i.e., it is the pre-departure range from the initial

sentencing.”       Id. at 183; see also United States v. Steele, 714

F.3d 751, 756 (2d Cir. 2013) (discussing the limitations of

Rivera’s holding after the effective date of Amendment 759).2

      2
       Lora filed a pro se § 3582(c)(2) motion on October 24, 2011
— a week before the effective date of Amendment 759. In addition
to defining the “applicable guideline range,” Amendment 759
clarified that a sentencing court shall use the version of § 1B1.10

                                        5
           Although Amendment 750 reduced the base offense levels for

crack cocaine offenses, it made no such reduction to the career

offender enhancements set forth in § 4B1.1.             As a career offender,

Lora   is    ineligible    for    §   3582(c)(2)      relief.      See   U.S.S.G.

§ 1B1.10(a)(2)(B); see also U.S.S.G. App. C, Amend. 750 (2011)

(explaining that offenders sentenced pursuant to § 4B1.1 receive

guideline ranges that are “unaffected by a reduction in the Drug

Quantity Table”); United States v. Mock, 612 F.3d 133, 138 (2d Cir.

2010) (a defendant sentenced as career offender under § 4B1.1 is

ineligible for a sentence reduction under crack cocaine amendments

to   the    Guidelines).     Lora     also   argues    that     recent   case   law

developments render his career offender status uncertain, but this

argument is not properly raised on a § 3582(c)(2) motion.                       See

Dillon, 130 S. Ct. at 2694. Accordingly, the order of the District

Court is AFFIRMED.

                                 FOR THE COURT,
                                 CATHERINE O’HAGAN WOLFE, Clerk




that is in effect on the date on which the court reduces the term
of imprisonment.   U.S.S.G. App. C, Amend. 759 (2011); U.S.S.G.
§ 1B1.10 cmt. n.6.    The District Court’s order denying Lora’s
motion was entered on August 30, 2012 — well after the effective
date of Amendment 759 — and the amendment’s definition of
“applicable guideline range” governs this appeal.

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