18‐1518
United States v. Kupa


                          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 May, two thousand
nineteen.

PRESENT: DENNIS JACOBS,
         PIERRE N. LEVAL,
         CHRISTOPHER F. DRONEY,
                        Circuit Judges.

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UNITED STATES OF AMERICA,
                   Appellee,

                  ‐v.‐                                             18‐1518

AFRIM KUPA,
        Defendant‐Appellant,




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KEITH LEVINE, AKA TUTTI, NEIL LOMBARDO,
JOSEPH SCLAFANI, LULZIM KUPA, NEZER
PAPRANIKU, ALBERT CRISCI, JOSEPH IDA,
CARMEN MARTUCCI,
                   Defendants.
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FOR APPELLANT:                                       Afrim Kupa, pro se, Danbury, CT.

FOR APPELLEE:                                        Susan Corkery, Robert T. Polemeni,
                                                     Assistant United States Attorneys,
                                                     for Richard P. Donoghue, United
                                                     States Attorney for the Eastern
                                                     District of New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern
District of New York (Korman, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.

       Appellant Afrim Kupa, proceeding pro se, moved under 18 U.S.C.
§ 3582(c)(2) for a reduction in his sentence for conspiracy to distribute cocaine
based on Amendment 782 to the United States Sentencing Guidelines. The
district court denied the motion, reasoning that Kupa was ineligible because
application of the amendment would not have lowered Kupa’s Guidelines range.
We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.

      Section 3582(c)(2) provides that a sentencing court may reduce a
defendant’s term of imprisonment if the sentence was based on a Guidelines
range that was subsequently lowered by the Sentencing Commission. See 18
U.S.C. § 3582(c)(2). We review de novo a district court’s determination as to



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whether a defendant is eligible for a sentence reduction. United States v.
Christie, 736 F.3d 191, 195 (2d Cir. 2013).

       “Amendment 782 . . . amended the Drug Quantity Table in U.S.S.G.
§ 2D1.1 to reduce the offense levels associated with certain controlled substances
crimes by two levels.” United States v. Leonard, 844 F.3d 102, 106 (2d Cir.
2016); see also U.S.S.G. Supp. to App’x C, amend. 782. Amendment 788 permits
Amendment 782 to be applied retroactively. See U.S.S.G. Supp. to App’x C,
amend. 788. But Kupa’s Guidelines range was unaffected by the amendment,
because his original base offense level of 32 was reduced by two levels for
playing a minor role in the offense. Had Amendment 782 been in effect at the
time Kupa was sentenced, his resulting base offense level, 30, would have been
too low to receive any reduction for minor role. U.S.S.G. § 2D1.1(a)(5) (2012
Guidelines) (minor role reduction applies only when base offense level is 32 or
higher).

       Kupa argues that that the district court should have reapplied the minor
role reduction after it applied the Amendment 782 reduction because a district
court “shall leave all other guideline application decisions unaffected” when
determining a defendant’s eligibility for a sentence reduction. U.S.S.G.
§ 1B1.10(b)(1). However, a reduction pursuant to Amendment 782 is “not
authorized under 18 U.S.C. § 3582(c)(2)” if it “does not have the effect of
lowering the defendant’s applicable guideline range.” Id. at § 1B1.10(a)(2)(B).
The court is not required “to ignore the effect of a lowered base offense level on
the other Guidelines provisions that, combined with [the] original base offense
level, produced the defendant’s initial sentencing range.” United States v.
Jarvis, 883 F.3d 18, 22 (2d Cir. 2018) (per curiam). In Jarvis, the defendant
would have received a 2‐level reduction in his base offense level, but due to how
the Guidelines calculated the total offense level for “grouped” offenses, his
Guidelines range remained unchanged. Id. Similarly, the application of
Amendment 782 to Kupa’s base offense level meant that another Guideline‐‐the
minor role reduction‐‐could no longer apply to his calculation. See id.; see also
United States v. Koglin, 822 F.3d 984, 987 (7th Cir. 2016) (defendant ineligible for
sentence reduction where a minor role reduction had lowered base offense level
from 32 to 30, because amended base offense level of 30 would make defendant

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ineligible for minor role reduction). Accordingly, the district court properly
determined that Kupa was ineligible for a sentence reduction.

      We have considered all of Kupa’s remaining arguments and find them to
be without merit. For the foregoing reasons, the order of the district court is
AFFIRMED.



                                      FOR THE COURT:
                                      CATHERINE O’HAGAN WOLFE, CLERK




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