                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1392




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Perez" (2005). 2005 Decisions. Paper 411.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/411


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 04-1392
                                  ________________

                           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-00301-03)
                 District Judge: Honorable Franklin S. Van Antwerpen
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 14, 2005

           Before: SLOVITER, BARRY AND FISHER, CIRCUIT JUDGES

                                (Filed October 14, 2005)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Louis Perez appeals the order of the United States District Court for the Eastern

District of Pennsylvania denying his motion to reduce his sentence. We will affirm.
       Because the parties are familiar with the facts, we provide only a brief summary

here. In December 1991, Perez pleaded guilty to one count of conspiracy to distribute

heroin. The District Court determined that Perez’s total offense level was 46 (43 being

the highest level on the federal sentencing table), and his criminal history category was I,

yielding a life sentence under the federal sentencing guidelines. We affirmed the

judgment on direct appeal. Years later, Perez filed several unsuccessful motions in the

District Court and this Court, including a motion under 28 U.S.C. § 2255 and an

application for leave to file a second or successive section 2255 motion.

       In December 2000, Perez filed a motion for a reduction of sentence pursuant to

18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10. Among other things, Perez asserted that

he benefitted from Amendment 591 to the sentencing guidelines, which made

U.S.S.G. § 2D1.2’s two-level increase applicable only when the defendant is convicted

of, or has stipulated to, a statutory violation of drug trafficking in a protected location.

He also asked the District Court to consider his postconviction rehabilitation pursuant to

United States v. Sally, 116 F.3d 76 (3d Cir. 1997). The District Court was disinclined to

grant Perez any relief because, even without the section 2D1.2 two-level increase, Perez’s

resulting offense level of 44 still mandated a life sentence. The District Court also agreed

with the government’s argument that Perez could not obtain a downward departure under

Sally for his postconviction rehabilitative efforts because Amendment 602, effective

November 1, 2000, added U.S.S.G. § 5K2.19 to the sentencing guidelines and barred



                                               2
Sally-type relief. Accordingly, the District Court denied Perez’s motion without prejudice

to his later reasserting his right to relief under Amendment 591 if other amendments,

combined with Amendment 591, would allow a sentence of less than life imprisonment.

On appeal, appointed counsel for Perez pursued only the issue regarding section 2D1.2.

We affirmed the District Court’s order.

       Perez returned to District Court and filed a second motion to reduce his sentence,

again asserting his postconviction rehabilitative efforts as a basis. The District Court

denied the motion, again explaining that section 5K2.19 forecloses a sentencing departure

based on postconviction rehabilitative efforts. Perez’s motion for reconsideration was

denied. Perez appeals. We have appellate jurisdiction under 28 U.S.C. § 1291.

       Perez contends that the District Court erred in concluding that U.S.S.G. § 5K2.19

barred consideration of postsentencing rehabilitative efforts within the context of his

motion to reduce his sentence under Amendment 591. In support, Perez cites United

States v. Yeaman, 248 F.3d 223 (3d Cir. 2001), a case decided after initial briefing had

been completed in Perez’s previous appeal, in which we stated that section 5K2.19

“work[ed] a departure from our previous rule in Sally” and suggested that it could not be

applied retrospectively. Id. at 228.

       The government recognizes that applying section 5K2.19 poses retroactivity

problems in Perez’s case, but it contends that these problems are somehow lessened by

the “one-book rule.” See U.S.S.G. § 1B1.11(b)(2) (“[t]he Guidelines Manual in effect on



                                              3
a particular date shall be applied in its entirety”). To illustrate, the government posits

that, because Perez sought the benefit of Amendment 591 on the section 2D1.2 issue, he

must also accept the application of Amendment 602 and section 5K2.19, barring his Sally

claim, as both amendments became effective under the same “book.” However, the one-

book rule is not implicated here. Perez does not seek resentencing under two different

manuals. Rather, he seeks resentencing under the manual applied to him at his sentencing

(which did not include section 5K2.19 to bar Sally-type departures), as altered by

Amendment 591 (which inured a benefit to be applied to him retroactively). See U.S.S.G.

§ 1B1.10(b) (instructing the court to consider the guidelines as though the retroactive

amendment had been in effect at the time of the original sentencing). The government

also asserts that section 3582 “does not afford jurisdiction for application of a new

judicial interpretation of a prior guideline.” Appellee’s Brief at 16. Yet Perez does not

seek the application of any new judicial interpretation. Rather, Perez relies on Sally as the

interpretation of the guidelines as they existed when he was sentenced.

       Nevertheless, we observe a more fundamental problem with Perez’s attempt to

invoke Sally in a § 3582(c)(2) proceeding.1 The scope of a sentencing court’s inquiry

under section 3582(c)(2) is limited to consideration of a retroactive amendment; section




       1
        We address this problem because we may affirm on any basis that is supported by
the record. Fairview Township v. EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985).

                                              4
3582(c)(2) does not entitle a defendant to a full de novo resentencing. United States v.

McBride, 283 F.3d 612, 615 (3d Cir. 2002).2

       Because it has been determined that Amendment 591 is not sufficient on its own to

benefit Perez, and because we conclude that Perez’s postconviction conduct cannot

provide a basis to reduce his sentence from life imprisonment, there was no basis upon

which the District Court could have granted Perez’s section 3582(c)(2) motion.

Accordingly, we will affirm the judgment of the District Court.




       2
        Because Perez’s request to be resentenced rests on section 3582(c)(2), his
situation differs from the defendants in Yeaman, supra, who were resentenced following a
remand during their direct appeal proceedings and not pursuant to a section 3582(c)(2)
motion.

                                             5
