    09-0936-cr
    USA v. Cirineo


                      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 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 Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 20th day of April, two thousand ten.

    PRESENT:
              PIERRE N. LEVAL,
              ROBERT A. KATZMANN,
              BARRINGTON D. PARKER,
                        Circuit Judges.
    __________________________________________

    United States of America,

                       Appellee,

                 v.                                       09-0936-cr


    Efrain Nicolas Cirineo,

                   Defendant-Appellant.
    __________________________________________

    FOR APPELLANT: Efrain N. Cirineo, pro se, Winton, N.C.

    FOR APPELLEE:      Preet Bharara, United States Attorney for the
                       Southern District of New York; Antonia M. Apps,
                       Katherine Polk Failla, Assistant United States
                       Attorneys, New York, N.Y.


          Appeal from a judgment of the United States District Court

    for the Southern District of New York (Crotty, J.).
     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

     Efrain N. Cirineo, pro se, appeals from the district court’s

order denying his motion made pursuant to 18 U.S.C. § 3582(c)(2)

for reduction of an imposed term of imprisonment.   We assume the

parties' familiarity with the facts and procedural history.

     Section 3582(c)(2) provides that "in the case of a defendant

who has been sentenced to a term of imprisonment based on a

sentencing range that has subsequently been lowered by the

Sentencing Commission . . . , the court may reduce the term of

imprisonment, after considering the factors set forth in section

3553(a) to the extent that they are applicable, if such a

reduction is consistent with applicable policy statements issued

by the Sentencing Commission."   Section 1B1.10(a)(2) of the

Sentencing Guidelines provides, in relevant part, 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)(1) if -
     (A) none of the amendments listed in subsection (c) is
     applicable to the defendant; or
     (B) an amendment listed in subsection (c) does not have the
     effect of lowering the defendant's applicable guideline
     range.

This Court reviews de novo a district court's determination as to

whether a defendant's sentence was based on a sentencing range

that was subsequently lowered by the Sentencing Commission.

United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009)


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(citing United States v. Pettus, 303 F.3d 480, 483 (2d Cir.

2002)).

     The November 2007 amendment to U.S.S.G. § 2D1.1(c)(1) did

not reduce the guideline offense level applicable to the highest

category of cocaine base offenses, which remained at 38, but did

increase the minimum quantity of cocaine base that would place an

offense at that level from 1.5 to 4.5 kilograms.   However,

because the original sentencing court found that Appellant was

responsible for distributing 19 kilograms of cocaine base, well

in excess of both 1.5 and 4.5 kilograms, the calculation of

appellant’s base offense level of 38 is unaffected by the

Guidelines amendment and he is therefore ineligible for a

sentence reduction.

     In United States v. Reddick, we determined that there is no

statutory right to counsel under the Criminal Justice Act in

connection with a § 3582(c) motion, and that the provision of

counsel for such motions should rest in the discretion of the

district court.   See 53 F.3d 462, 464-65 (2d Cir. 1995).     We

noted that the merits of the motion will be a "significant factor

in the exercise of that discretion."   Id. at 465 n.2.   In this

case, where it was readily ascertainable from the record that

Appellant was ineligible for a reduction in sentence, the court

did not abuse its discretion by denying his motion for

appointment of counsel.

     Finally, the district court did not abuse its discretion by

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choosing not to hold a hearing, where the sentencing court had

previously found Appellant to be responsible for distributing a

quantity of cocaine base well above the 4.5 kilogram threshold.

Rule 43(b)(4) of the Federal Rules of Criminal Procedure provides

that a defendant is not required to be present at a proceeding

"involv[ing] the correction or reduction of sentence under Rule

35 or 18 U.S.C. § 3582(c)."   Furthermore, U.S.S.G. § 1B1.10 makes

clear that "proceedings under 18 U.S.C. § 3582(c)(2) and this

policy statement do not constitute a full resentencing of the

defendant," U.S.S.G. § 1B1.10(a)(3).   Section 6A1.3 of the

Guidelines does allow hearings "[w]hen any factor important to

the sentencing determination is reasonably in dispute."   U.S.S.G.

§ 6A1.3.    However, in this case, the district court did not abuse

its discretion by choosing not to hold a hearing where the

sentencing court’s finding that Appellant was responsible for

distributing a quantity of cocaine base well above the 4.5

kilogram threshold was not reasonably in dispute.

     For the reasons stated above, the district court’s order is

AFFIRMED.


                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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