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


5-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3554




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Recommended Citation
"USA v. Pinet" (2006). 2006 Decisions. Paper 1058.
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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       NO. 05-3554
                                    ________________

                            UNITED STATES OF AMERICA

                                             v.

                           ANGEL MANUEL PINET, a/k/a JOSE

                                      Angel M. Pinet,
                                                Appellant
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Crim. No. 97-cr-00169-2)
                    District Judge: Honorable William W. Caldwell
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    MAY 19, 2006
               Before: FISHER, ALDISERT AND WEIS, Circuit Judges.
                                (Filed May 23, 2006)
                             _______________________

                                      OPINION
                               _______________________

PER CURIAM:

              Angel Manuel Pinet appeals from the District Court order denying his

motion for modification of his sentence under 18 U.S.C. § 3582(c)(2). For the following

reasons, we will affirm.

                     As the parties are familiar with the facts, we will only briefly
summarize them. Pinet was sentenced to 360 months imprisonment for drug trafficking

offenses in 1998. Pinet appealed and we affirmed. In July 2005, Pinet filed a motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides for

the reduction of a sentence for a defendant who was sentenced based on a sentencing

range later lowered by an amendment to the United States Sentencing Guidelines.

                     Pinet seeks a reduction of his sentence based on Amendment 668 of

the Sentencing Guidelines, which became effective in November 2004. The Amendment

modified § 2D1.1 for defendants who received an adjustment under § 3B1.2 for a

mitigating role in the offense. Before Amendment 668 was enacted, the base level

offense for such a defendant could not be more than thirty. After its enactment, however,

the base offense level of a defendant receiving an adjustment under § 3B1.2 is subject to a

different scale depending on the base offense level. A defendant whose base offense

level is thirty-two would receive a two-point reduction, a base offense level of thirty-four

or thirty-six would receive a three-point reduction and a base offense level of thirty-eight

would receive a four-point reduction.

                     Pinet argues he is entitled to a two-point reduction in his sentence

based upon Amendment 668. Pinet did not receive an adjustment for his mitigating role

in the offense pursuant to § 3B1.2, however. Therefore, the District Court properly




                                             2
determined that Amendment 668 is not applicable to Pinet.1

                     Pinet also argues that his sentence should be lowered in light of the

United States Supreme Court decision in United States v. Booker, 543 U.S. 220 (2005).

However, Booker is outside the scope of a sentence modification under § 3582(c)(2)

because it is not the equivalent of a Sentencing Guidelines amendment. Cf. United States

v. McBride, 283 F.3d 612 (3d Cir. 2002)(holding that a claim under Apprendi v. United

States, 530 U.S. 466 (2000), is outside the scope of a sentence modification under

§ 3582(c)(2)). Additionally, Booker is not retroactively applicable to cases on collateral

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

                     For these reasons, we find that the District Court correctly denied

Pinet’s   § 3582(c)(2) motion. We will affirm the District Court order denying the

motion.




   1
    The District Court also held that Amendment 668 cannot be applied retroactively.
However, we need not reach this issue because of the disposition of the appeal outlined
above.

                                             3
