15-2779-cr
United States v. Gil-Reyes


                              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 December, two thousand sixteen.

PRESENT: BARRINGTON D. PARKER,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                             v.                                          No. 15-2779-cr

FRANKLIN B. GIL-REYES, AKA “Gago,” AKA
“Abel,”
                  Defendant-Appellant,

BENJAMIN RAMOS, AKA “El Calvo,” AKA “Flaco,”
RENE MAYOR GARCIA, AKA “Cuba,” FRANKLIN M.
GIL, AKA “Pelon,” AKA “Pato,” ALEJANDRO
GARCIA, AKA “Leandro,” AKA “Alex,” ALLAH ZAKI,
JOSE TEJADA, AKA “Ito,” AKA “Ramon,” JOSE LUIS
CRUZADO-WILSON, AKA “Mr. Vargas,” AKA
“Esmeraldo,” AKA “Vieja,” AKA “Esmeraldo Vargas,”
AKA “Manuel Vargas,” AKA “Jose Vargas,” AKA
“Franklin Rivero Santana,” HECTOR REYES, AKA
“Coco,” AKA “Hernan,” SANDY HERNANDEZ, AKA
“Pata Guinea,” AKA “Huevo Quemao,” MAGGIE

                                                     1
DEFREITAS,                     CARMEN                      MAGNLI
VASQUEZ-ALVAREZ, AKA “Magalys,” CARLOS
HERNANDEZ,              MANUEL           MORALES,            PABLO
CAMPO, BERNARDO IZQUIERDO, AKA “Johnny,”
ANGEL GERENA, JENNY A. VELASCO,
                                 Defendants.*
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APPEARING FOR APPELLANT:                          ALAN MITCHEL NELSON, Esq., Law Office
                                                  of Alan Nelson, Esq., Lake Success, New York.

APPEARING FOR APPELLEE:                     NADIA E. MOORE, Assistant United States
                                            Attorney (David C. James, Assistant United
                                            States Attorney, on the brief), for Robert L.
                                            Capers, United States Attorney for the Eastern
                                            District of New York, Brooklyn, New York.

         Appeal from an oral order of the United States District Court for the Eastern

District of New York (John Gleeson, Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the oral order entered on December 5, 2014, is AFFIRMED.

         Defendant Franklin Gil-Reyes, who is presently serving a 200-month prison term

for trafficking cocaine, appeals from the denial of his motion for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States

Sentencing Guidelines, which retroactively lowered the base offense levels applicable to

most drug crimes under U.S.S.G. § 2D1.1(c). We review de novo a district court’s

determination that a defendant is ineligible for a sentence reduction pursuant to

§ 3582(c)(2). See United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013). In so

doing, we assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

*
    The Clerk of Court is directed to amend the caption as set forth above.

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       Under § 3582(c)(2), a district court may reduce a defendant’s sentence only if it

was based on a sentencing range that the Sentencing Commission subsequently lowered

and the reduction would be consistent with applicable Guidelines policy statements. See

United States v. Borden, 564 F.3d 100, 103–04 (2d Cir. 2009).                     Gil-Reyes

concedes—and the district court agreed—that his sentencing range was not lowered by

Amendments 782 and 788 because, in light of the drug quantity attributed to his criminal

conduct, his base offense level both before and after the amendment was 38. Moreover,

the policy statement governing § 3582(c)(2) motions provides that a reduction is “not

consistent with this policy statement . . . if . . . [Amendment 782] does not have the effect

of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).

In light of Gil-Reyes’s concession, his motion thus fails both prongs of § 3582(c)(2).

See United States v. Cirineo, 372 F. App’x 178, 179 (2d Cir. 2010) (holding that

defendant was ineligible for reduction because base offense level was “unaffected” by

Guidelines amendment).

       Gil-Reyes nevertheless faults the district court for failing to reconsider whether a

mitigating role reduction under U.S.S.G. § 3B1.2—which was denied at sentencing—was

warranted. He argues that, because U.S.S.G. § 1B1.10 (1) directs a court entertaining a

§ 3582(c)(2) motion to “determine the amended guideline range that would have been

applicable to the defendant,” id. § 1B1.10(b)(1), and (2) defines the “applicable”

guideline range as the one “that corresponds to the offense level and criminal history

category determined pursuant to 1B1.1(a),” id. § 1B1.10 cmt. n.1(A), the district court

was authorized to reassess role adjustment decisions made at the initial sentencing

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pursuant to U.S.S.G. § 1B1.1(a)(3). This argument fails because it misunderstands a

§ 3582(c)(2) proceeding.

       Section 3582 does not provide for “a plenary resentencing” but, rather, for “only a

limited adjustment to an otherwise final sentence.” Dillon v. United States, 560 U.S.

817, 826 (2010). The governing policy statement makes this point when it states that, in

determining a defendant’s amended guideline range, “the court shall substitute only the

amendments listed in subsection (d) for the corresponding guideline provisions that were

applied when the defendant was sentenced and shall leave all other guideline application

decisions unaffected.” U.S.S.G. § 1B1.10(b)(1) (emphasis added); see id. § 1B1.10 cmt.

n.2. The highlighted text makes plain that decisions about role adjustments are not to be

reexamined on a § 3582(c)(2) motion. See Dillon v. United States, 560 U.S. at 831

(holding that aspects of sentence not affected by Commission’s amendment to U.S.S.G.

§ 2D1.1 “are outside the scope of the proceeding authorized by § 3582(c)(2)”); United

States v. Mock, 612 F.3d 133, 135 (2d Cir. 2010) (stating that defendant may not attribute

error to original, otherwise-final sentence on a § 3582(c)(2) motion). The district court

thus correctly concluded that Gil-Reyes was ineligible for a sentence reduction under

§ 3582(c)(2).1


1
  We need not consider the reasoning employed to uphold the denial of a § 3582(c)(2)
motion in United States v. Rios, 765 F.3d 133 (2d Cir. 2014), because, as the district court
correctly concluded, Gil-Reyes’s motion is defeated by the plain language of
§ 3582(c)(2) and U.S.S.G. § 1B1.10. Indeed, in attempting to distinguish Rios,
Gil-Reyes acknowledges the fundamental problem with his role-adjustment argument,
that is, the relevant amendment addressed drug quantity, not role, making reconsideration
of role outside the scope of a § 3582(c)(2) motion. Gil-Reyes’s argument about the rule
of lenity is equally meritless because he fails to identify any genuine ambiguity in the

                                             4
      We have considered Gil-Reyes’s other arguments and conclude that they are

without merit. Accordingly, we AFFIRM the order of the district court.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




statute or the Guidelines, much less ambiguity that cannot be resolved by other rules of
construction. See United States v. DiCristina, 726 F.3d 92, 104 (2d Cir. 2013)
(observing that rule of lenity applies only when all other rules of construction have been
applied and ambiguity persists).

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