     08-5444-cr
     USA v. Aviles


 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 SUM M ARY
 7   ORDERS FILED A FTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
 8   LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
 9   PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
10   CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
11   BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
12   O RDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
13   W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
14   UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC D ATABASE W HICH IS
15   PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
16   HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
17   OF THE ORDER ON SUCH A DATABASE, TH E C ITATION M UST INCLUDE REFERENCE TO THAT
18   DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
19
20           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
21   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
22   the 25th day of November, two thousand nine.
23
24   PRESENT:          Robert A. Katzmann,
25                     Barrington D. Parker,
26                     Gerard E. Lynch,
27                                                Circuit Judges.
28
29   ------------------------------------------------------------------
30   United States of America,
31                                                Appellee,
32                              v.                                                 No. 08-5444-cr
33
34   Miguel Aviles,
35                                                Defendant-Appellant.
36   --------------------------------------------------------------------
37   APPEARING FOR APPELLANT: Richard Jasper, New York, New York
38
39
40   APPEARING FOR APPELLEE:                      Preet Bharara, United States Attorney for the Southern
41                                                District of New York (Amanda Kramer and Katherine Polk
42                                                Failla, Assistant United States Attorneys, of counsel), New
43                                                York, New York
44
45             Appeal from the United States District Court for the Southern District of New York (Shira

46   A. Scheindlin, Judge).
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the District Court is AFFIRMED.

 3          Miguel Aviles, a federal prisoner, appeals from an order of the United States District

 4   Court for the Southern District of New York (Scheindlin, J.) denying his motion for a sentence

 5   reduction pursuant to 18 U.S.C. § 3582(c)(2) based on amendments to the United States

 6   Sentencing Guidelines that lowered the base offense levels applicable to offenses involving crack

 7   cocaine.

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

 9   imposed.” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007) (per curiam). An

10   exception to that rule applies to “a defendant who has been sentenced to a term of imprisonment

11   based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

12   18 U.S.C. § 3582(c)(2). Although Aviles was sentenced for offenses involving crack cocaine,

13   and the guidelines applicable to such offenses were lowered in 2007 by amendments made

14   retroactive in 2008, see U.S.S.G. Supp. to App. C, amends. 706 & 713 (2008); United States v.

15   McGee, 553 F.3d 225, 225 (2d Cir. 2009) (per curiam), Aviles is not eligible for such a reduction

16   because his original sentence was not “based on” the subsequently-lowered crack guidelines.

17          The guidelines range for Aviles’s offenses was calculated at 210–262 months’

18   imprisonment. This calculation was academic, however, because the offenses of conviction

19   carried mandatory minimum sentences totaling life imprisonment plus 35 years. That minimum,

20   and the guidelines, were, in turn, rendered inapplicable by a government motion, pursuant to 18

21   U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, based on Aviles’s substantial assistance to law

22   enforcement. Accordingly, the district court sentenced him to imprisonment for 144 months.

23   That sentence bore no obvious relation to the guidelines recommendation. Moreover, as is

                                                     2
 1   apparent from the sentencing transcript, the sentence was based on a careful balancing of the

 2   facts and circumstances of the offenses, the character and history of the defendant, and the

 3   various purposes of sentencing. The guidelines were mentioned only briefly and obliquely in that

 4   discussion, and the sentence was in no sense “based on” the applicable guidelines. The law is

 5   clear that when the district court grants a § 5K1.1 motion and does not base the resulting

 6   sentence on a guidelines calculation, the defendant is not eligible for a sentence reduction under

 7   18 U.S.C. § 3582(c)(2). United States v. Williams, 551 F.3d 182, 186-87 (2d Cir. 2009).

 8          Even if Aviles were eligible for such a reduction, the decision whether to grant a

 9   reduction is confided to the sound discretion of the district court. United States v. Borden, 564

10   F.3d 100, 104 (2d Cir. 2009). Here, the district court declined to reduce the sentence, stating that

11   the original sentence “was never attached to the guidelines,” because the court “gave what [it]

12   thought was right that day, without consideration to the guidelines.” Because the sentence was

13   “already lenient,” and the court continued to believe it was the “right” sentence, the court

14   declined to modify the sentence. We can see no abuse of discretion in that decision.

15          Accordingly, the judgment of the district court is AFFIRMED.

16
17                                         FOR THE COURT:
18                                         CATHERINE O’HAGAN WOLFE, Clerk of Court
19
20
21                                         By:




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