12-3133-cr
United States v. Taylor


                                    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 26th
day of August, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            PETER W. HALL,
            DENNY CHIN,
                         Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                              v.                                                      No. 12-3133-cr

DEWAYNE TAYLOR, AKA ANTHONY WATTS,

                     Defendant-Appellant,

DARIEN PUGHE, JESSIE WRIGHT,

                     Defendants.1

_____________________________________




1   The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties shown above.
FOR DEFENDANT-APPELLANT:                              ANDREW M. ST. LAURENT (Lucas E. Andino,
                                                      Law Office of Lucas E. Andino, on the brief),
                                                      Harris, O’Brien, St. Laurent & Houghteling
                                                      LLP, New York, NY.

FOR APPELLEE:                                         MATTHEW S. AMATRUDA (Peter A. Norling,
                                                      on the brief), Assistant United States Attorneys,
                                                      for Loretta E. Lynch, United States Attorney,
                                                      United States Attorney’s Office for the
                                                      Eastern District of New York, Brooklyn, NY.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Carol B. Amon, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s July 24, 2012 order is AFFIRMED.

                                         BACKGROUND

        Defendant-appellant DeWayne Taylor appeals from the District Court’s July 24, 2012 order,
which denied his motion for a modification of sentence pursuant to 18 U.S.C. § 3582(c)(2).
Previously, a jury had convicted Taylor of conspiracy to distribute and possess with the intent to
distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. Taylor’s
Guidelines range was 360 months’ to life imprisonment, but the District Court imposed a below-
Guideline sentence, sentencing him to 270 months’ imprisonment. We affirmed Taylor’s sentence
on appeal. See United States v. Pughe, 441 F. App’x 776 (2d Cir. 2011) (non-precedential summary
order).

        As relevant here, in 2010, the United States Sentencing Commission (“Sentencing
Commission”) enacted Amendment 750 to the Guidelines, which “retroactively reduced the base
offense levels for crack-cocaine offenses” pursuant to the Fair Sentencing Act of 2010 (“FSA”),
Pub. L. No. 111-220, 124 Stat. 2372 (2010). See United States v. Figueroa, 714 F.3d 757, 759 (2d Cir.
2013). In light of Amendment 750, the District Court sua sponte ordered the government to show
cause why Taylor should not be resentenced pursuant to 18 U.S.C. § 3582(c) and U.S.S.G. § 1B1.10.

        After receiving submissions from the parties, however, the District Court concluded that
Taylor was not entitled to a sentence reduction because his “applicable guidelines range”―which is
defined as “the guideline range that corresponds to the offense level and criminal history category
determined pursuant to § 1B1.1(a) . . . before consideration of any departure provision in the
Guidelines Manual or any variance,” U.S.S.G. § 1B1.10 cmt. n.1(A) (2011) (emphasis supplied)―was
not lowered by the relevant amendments to the Guidelines, see App’x 14. In light of the District
Court’s finding that “[t]he new amendments do not change Taylor’s Guidelines range,” it denied
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Taylor a sentence reduction. Id.; see also U.S.S.G. § 1B1.10(a)(2)(B) (“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)(2) if . . . [a]n amendment . . . does not have the effect of lowering the
defendant’s applicable guideline range.”). This appeal followed.

                                            DISCUSSION

         We generally review “a district court’s decision to modify or maintain a sentence under 18
U.S.C. § 3582(c)(2) for abuse of discretion,” Figueroa, 714 F.3d at 759, but the questions of law raised
in this appeal are reviewed de novo, see United States v. Main, 579 F.3d 200, 202-03 (2d Cir. 2009).

        On appeal, Taylor does not dispute the District Court’s analysis or interpretation of § 1B1.10
of the Guidelines and its corresponding commentary. Rather, he attacks the validity of the amended
version of § 1B1.10, arguing that: (1) the Sentencing Commission exceeded its authority and went
beyond the directives of the Sentencing Reform Act (“SRA”) in amending § 1B1.10; (2) the
Sentencing Commission’s amendment of § 1B1.10 violates separation-of-powers principles; and (3)
the Sentencing Commission failed to follow the notice-and-comment procedural requirements, as
set forth by the Administrative Procedure Act (“APA”), when it amended § 1B1.10.

         As Taylor’s counsel conceded at oral argument, however, Taylor’s arguments are foreclosed
by two of our recent decisions, which were decided after the briefing in this case was concluded. See
United States v. Erskine, 717 F.3d 131, 136-41 (2d Cir. 2013); United States v. Steele, 714 F.3d 751, 752
(2d Cir. 2013). Those two cases make clear that: (1) the District Court correctly concluded that it
lacked the authority to resentence Taylor below his amended Guidelines range, see Steele, 714 F.3d at
753 (“[T]he provisions of § 1B1.10 of the Guidelines . . . require a resentencing court to apply the
amended Guidelines range that would have been applicable to a defendant, without applying any
departures other than one granted upon appropriate motion by the government based on a
defendant’s substantial assistance.” (emphasis omitted)); and (2) Taylor’s arguments related to the
impermissibility of the relevant amendment to U.S.S.G. § 1B1.10 are without merit, see Erskine, 717
F.3d at 136-41 (rejecting arguments that the relevant amendment to U.S.S.G. § 1B1.10 was enacted
in violation of the SRA, separation of powers principles, and the APA). Accordingly, the District
Court did not err by refusing to reduce Taylor’s sentence.




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                                        CONCLUSION

        We have considered all of Taylor’s arguments on appeal and find them to be without merit.
For the reasons stated, we AFFIRM the District Court’s July 24, 2012 order, which denied Taylor’s
motion for a modification of sentence pursuant to 18 U.S.C. § 3582(c)(2).

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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