12-2640-cr
United States v. Howell


                          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
ASUMMARY 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 11th day of September, two thousand thirteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,
                         v.
                                                                             No. 12-2640-cr
HARVEY HOWELL, a/k/a Boo,
                    Defendant-Appellant.

HENRY MEDINA, a/k/a Bito, a/k/a Snoop, et al.,
                                 Defendants.*
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FOR APPELLANT:                                   Harvey Howell, pro se, Berlin, New Hampshire.

FOR APPELLEE:                                    David C. James, James P. Loonam, Assistant
                                                 United States Attorneys, for Loretta E. Lynch,
                                                 United States Attorney for the Eastern District of
                                                 New York, Brooklyn, New York.

* The Clerk of the Court is directed to amend the official caption as shown above.

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

New York (Sterling Johnson, Jr., Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on May 17, 2012, is AFFIRMED.

       Harvey Howell is serving a 22-year sentence agreed to under Fed. R. Crim. P.

11(c)(1)(C) for one count of racketeering based on predicate acts of conspiracy to

distribute 50 grams or more of cocaine base and attempted murder of a police officer. He

now appeals, pro se, from the denial of his motion to reduce his sentence pursuant to 18

U.S.C. § 3582(c)(2) and Amendment 750 to the U.S. Sentencing Guidelines (the

“Guidelines”), which lowered the base offense levels for crack cocaine offenses. See

U.S.S.G. App. C., Amend. 750 (2011); United States v. Rivera, 662 F.3d 166, 170–71 (2d

Cir. 2011) (discussing retroactivity of crack cocaine guideline amendments). 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.

       Section 3582(c)(2) provides that a sentencing court may, after considering the

factors set forth in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the

Sentencing Commission, reduce a defendant’s term of imprisonment if his sentence was

based on a sentencing range subsequently lowered by the Sentencing Commission. See

18 U.S.C. § 3582(c)(2). On de novo review of whether Howell’s sentence was based on a

Guidelines range subsequently lowered by the Sentencing Commission, see United States


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v. Williams, 551 F.3d 182, 185 (2d Cir. 2009), we agree with the district court that it was

not.

       That conclusion finds support in two facts. First, Howell’s recommended 360

months to life Guidelines range derived from a base level of 43 dictated solely by his

involvement in the murder of a fellow gang member. See PSR ¶ 35; see also U.S.S.G.

§§ 2D1.1(d)(1), 2A1.1, 2A1.2. In short, crack trafficking had no effect on his Guidelines

range. Second, in rejecting Howell’s application for a sentence reduction, the district

court expressly stated that its 22-year sentence “did not derive from a guideline set by the

Sentencing Commission,” but rather was “the product of a plea negotiation.” United

States v. Howell, No. 04 CR 380 (SJ), 2012 WL 1802077, at *1 (E.D.N.Y. May 16, 2012).

This was in reference to Howell’s Rule 11(c)(1)(C) plea agreement, in which he and the

Government agreed that a 22-year sentence was “the appropriate disposition of the case”

under the factors set forth in 18 U.S.C. § 3553(a), regardless of the Guidelines calculation.

Plea Agreement ¶ 2.

       In these circumstances, we easily conclude that Howell was not sentenced pursuant

to the subsequently modified Guidelines section applicable to crack cocaine offenses, or to

any Guidelines. Rather, he was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement

that did not “expressly use[] a Guidelines sentencing range to establish the term of

imprisonment.” Freeman v. United States, 131 S. Ct. 2685, 2698 (2011) (Sotomayor, J.,

concurring in the judgment). Thus, the district court correctly concluded that Howell was

not eligible for a sentence reduction pursuant to § 3582(c)(2). Cf. id. at 2695 (plurality

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opinion) (holding that Rule 11(c)(1)(C) agreement will not foreclose availability of

§ 3582(c)(2) relief when sentence is based on the crack cocaine Guidelines).

       In any event, the district court stated that, even if Howell were eligible for a

reduction in sentence, it would decline to grant one, in light of “the seriousness of the

non-crack related racketeering act (attempted murder of a police officer) committed by

Howell.” United States v. Howell, 2012 WL 1802077, at *1. That determination, like

the original sentence, was well within the bounds of the district court’s discretion.

       We have considered Howell’s remaining arguments on appeal and conclude that

they are without merit. Accordingly, the order of the district court is AFFIRMED.


                                   FOR THE COURT:
                                   CATHERINE O=HAGAN WOLFE, Clerk of Court




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