                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4505




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"USA v. Lizardo" (2006). 2006 Decisions. Paper 1468.
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CPS-131                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-4505
                                    ________________

                            UNITED STATES OF AMERICA


                                               v.

                                    SIXTO LIZARDO,

                                        Appellant
                       ____________________________________

                     On Appeal From the United States District Court
                         For the Eastern District of Pennsylvania
                               (D.C. Crim. No. 99-cr-00385)
                     District Judge: Honorable Ronald L. Buckwalter
                     _______________________________________

 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                February 16, 2006

             Before: BARRY, SMITH and NYGAARD, CIRCUIT JUDGES

                                  (Filed: March 8, 2006)


                                  ___________________

                                       OPINION
                                 ____________________

PER CURIAM

       Sixto Lizardo, a federal prisoner, appeals the order of the United States District

Court for the Eastern District of Pennsylvania denying his petition for a reduction of
sentence filed pursuant to 18 U.S.C. § 3582(c)(2).1 For the reasons that follow, we will

summarily affirm the judgment of the District Court.

       In June 2000, after a jury trial, Lizardo was convicted of one count of conspiracy

and three counts of distribution of cocaine. He was sentenced to 240 months of

imprisonment. We affirmed Lizardo’s conviction and sentence in 2002. In May 2005,

Lizardo filed the underlying section 3582(c)(2) petition in the District Court, arguing that

United States v. Booker, 543 U.S. 220 (2005), constitutes an amendment to the United

States Sentencing Guidelines. Lizardo contends that his jury trial right was violated when

his sentence was increased based on a drug quantity found by the District Court instead of

by the jury. The government filed a response, and Lizardo filed a reply. By order entered

September 26, 2005, the District Court denied relief. Lizardo appeals and has filed a

memorandum in opposition to summary affirmance.

       By its terms, section 3582(c)(2) provides for a reduction in sentence for a

defendant who was sentenced based on a sentencing range that the Sentencing



       1
         Lizardo submitted an eleven-page typewritten document titled in part “Petition
for Reduction in Term of Imprisonment,” specifically noting that he filed it pursuant to
18 U.S.C. § 3582(c)(2). Along with the petition, Lizardo submitted a form motion under
28 U.S.C. § 2255 to vacate his sentence, in which he raised no additional claims. From
the record, it does not appear that the District Court treated Lizardo’s document as a
section 2255 motion. We note that Lizardo asserted in District Court that, in the
alternative to section 3582(c)(2), he is entitled to pursue habeas corpus relief under
28 U.S.C. § 2241 because he did not file a timely section 2255 motion, and section 2255
is thus an inadequate or ineffective means for obtaining relief. However, section 2255 is
not “inadequate or ineffective” merely because a petitioner cannot meet section 2255’s
stringent gate-keeping provisions. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

                                             2
Commission later lowered by amendment to the Sentencing Guidelines. The Supreme

Court’s decision in Booker is not the equivalent of a Sentencing Guidelines amendment

made by the Sentencing Commission. Cf. United States v. McBride, 283 F.3d 612 (3d

Cir. 2002) (holding that a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), is

outside the scope of a sentence modification under section 3582(c)(2)). Moreover, we

note that we have held that Booker is not retroactively applicable to cases on collateral

review. See Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). Lizardo’s conviction

became final years before Booker was decided. Thus, contrary to Lizardo’s arguments on

appeal, he would not be entitled to relief under Booker under section 2255.

       Because this appeal presents “no substantial question,” see 3d Cir. LAR 27.4 and

I.O.P. 10.6, we will summarily affirm the District Court’s order.




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