                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2002

USA v. Perez
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1203




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Recommended Citation
"USA v. Perez" (2002). 2002 Decisions. Paper 443.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/443


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                                                                       NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 01-1203


                     UNITED STATES OF AMERICA

                                 v.

                    LOUIS PEREZ,
                    a/k/a ALBERTO SANCHEZ,

                            LOUIS PEREZ,
                                           Appellant


        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                  (D.C. Crim. No. 91-cr-00301)
         District Judge: Hon. Franklin S. VanAntwerpen



           Submitted Under Third Circuit LAR 34.1(a)
                          July 22, 2002

     Before:   SLOVITER, NYGAARD, and BARRY, Circuit Judges

               (Filed        July 25, 2002             )



                        OPINION OF THE COURTSLOVITER, Circuit Judge.

                                I.
     Appellant Louis Perez appeals from the order of the District Court denying his
Motion for Reduction of Sentence. Because we write for the parties who are familiar
with the facts, we need not review them in any detail.
     Perez pled guilty to one count of conspiracy to distribute heroin (over ten
kilograms in one year) in violation of 21 U.S.C. 846. He was assigned a total offense
level of 46 and a criminal history category of I, yielding a sentence of life
imprisonment, five years supervised release, and a $10,000 fine. We affirmed the
judgment on direct appeal.
     A number of years later, Perez filed a series of motions in the District Court and in
this court seeking to correct or decrease the sentence, each of which was denied. Finally,
in December 2000 Perez filed a motion to reduce his sentence pursuant to 18 U.S.C.
3582(c)(2) and U.S.S.G. 1B1.10. The District Court denied that motion in January
2001. Perez appeals from the order.
     The District Court had jurisdiction under 18 U.S.C. 3231, and this court has
jurisdiction pursuant to 18 U.S.C. 3742(a) as well as 28 U.S.C. 1291.
     Perez seeks a retroactive two-level decrease in his sentencing range. He invokes
18 U.S.C. 3582(c)(2), which states in relevant part:
          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.
     Perez relies on Amendment No. 591, effective November 1, 2000, which changed
U.S.S.G. 2D1.2 to apply a two-level increase only when the defendant "is convicted of
a statutory violation of drug trafficking in a protected location . . . or in a case in which
the defendant stipulated to such a statutory violation." U.S.S.G. 2D1.2 app. n.1.
Although Perez stipulated that he distributed heroine on numerous occasion within 1,000
feet of a school, both parties agree that Perez was never "convicted of" nor "stipulated
to" a "statutory violation" of either 21 U.S.C. 845(a) and its successor 21 U.S.C. 860
(prohibiting drug distribution near a school). Perez argues that therefore the two-level
 2D1.2 increase that was imposed on his sentence should be subtracted from his offense
level.
     The District Court agreed that Perez may well fall within the Guidelines
Amendment No. 591 but was disinclined to give Perez any relief as requested.    The
court stated, "even if defendant’s Guideline Level is 44, the mandatory nature of the life
sentence is unchanged and resentencing in this case would accomplish nothing at this
point in time." App. at 8.
     Perez argues that his sentence should be viewed as 43, which is the Guideline
level leading to life imprisonment, and that a two-level deduction would reduce it to 41.
This argument has no support in the Guidelines. Perez’s level when he was sentenced
was 46. The District Court stated that the judgment should show the defendant’s true
offense level. The court stated that Perez’s offense level without the two-level increase
would be 44, and it would be treated as level 43, which requires a term of life
imprisonment. To grant the decrease at this juncture would "accomplish nothing." Id.
The court left open the possibility that at some future time other amendments, combined
with Amendment No. 591, "would allow [Perez] to reduce his sentence to a guideline
level which no longer requires a mandatory life sentence." Id. The court stated, in that
event, it would allow Perez to reassert his entitlement to the two- level deduction. We
see no legal error in the District Court’s conclusion.
                                III.
       For the reasons set forth above, we will affirm the Order of the District Court._______

TO THE CLERK:

          Please file the foregoing opinion.


                    /s/Dolores K. Sloviter
                    _____________________________
                    Circuit Judge
