16-928-cr
United States v. Zandi

                          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 TO 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
27th day of February, two thousand seventeen.

Present:
            JOHN M. WALKER, JR.,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges,
            VINCENT L. BRICCETTI,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                     16-928-cr

MAHMUD ZANDI,

                         Defendant-Appellant,

MOHAMED NASSIR, AHMED SHAAT A/K/A EDWARD
LEE MIKE, SADEQ H. ALABUDI A/K/A AL,


                  Defendants.
_____________________________________

*
   Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York,
sitting by designation.


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For Appellee:                              NOMI D. BERENSON (Jo Ann M. Navickas, on the
                                           brief) for Robert L. Capers, United States Attorney for
                                           the Eastern District of New York, New York, New
                                           York

For Defendant-Appellant:                   KHALIL KAMEL EL ASSAAD (James C. Neville, on the
                                           brief), Lumer & Neville, New York, New York

         Appeal from a judgment of the United States District Court for the Eastern District of

New York (Wexler, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

         Defendant-Appellant Mahmud Zandi is serving a 240-month prison sentence after

conviction for conspiracy and attempt to manufacture methamphetamine, see 21 U.S.C. §§ 846,

841(b)(1)(A)(viii), and to possess and distribute pseudoephedrine to be used to manufacture

methamphetamine, see id. §§ 846, 841(c). Zandi appeals the district court’s denial of his motion

for a sentence reduction under 18 U.S.C. § 3582(c) and Amendment 782 to the United States

Sentencing Guidelines (“the Guidelines”).     We assume the parties’ familiarity with the facts,

procedural history of the case, and the issues on appeal.

         We review de novo a district court’s determination of a defendant’s eligibility for a

sentence reduction under § 3582(c)(2).     United States v. Christie, 736 F.3d 191, 195 (2d Cir.

2013).    Under § 3582(c)(2), a district court may reduce the sentence of “a defendant who has

been sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission.”           § 3582(c)(2).   In 2014, the United States

Sentencing Commission issued Amendment 782, reducing by two the offense levels for certain

controlled-substances offenses.    See U.S. Sentencing Guidelines Manual supp. to app. C,




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amend. 782 (U.S. Sentencing Comm’n 2016).              The Sentencing Commission also issued

Amendment 788, providing for the retroactive application of Amendment 782. Id. amend. 788.

         As the district court correctly held, Zandi is ineligible for a sentence reduction under

§ 3582(c) because Amendment 782 did not lower the sentencing range applicable to him.

When sentencing Zandi in 2007, the district court determined that his base offense level was 38

according to the then-applicable drug quantity table. At the time, this offense level applied to a

defendant responsible for 15 kilograms or more of methamphetamine.        U.S.S.G. § 2D1.1(c)(1)

(2006 ed.). Zandi fell into this category because the district court adopted the finding of the

United States Probation Office (“Probation”), noted in its Presentence Investigation Report

(“PSR”), that Zandi was responsible for the equivalent of 300 kilograms of methamphetamine.

In light of Zandi’s criminal history category of II, the Guidelines sentencing range was between

262 and 327 months.        Under the post–Amendment 782 drug quantity table, an offender

responsible for the equivalent of 300 kilograms of methamphetamine would still have a base

offense level of 38. Id. § 2D1.1(c)(1) (2016 ed.) (assigning this offense level to defendants

responsible for 45 kilograms or more of methamphetamine).       If the offender’s criminal history

category were II, the Guidelines sentencing range would remain between 262 and 327 months.

Because this range is the same as the one applicable to Zandi in 2007, § 3582(c)(2) does not

authorize the district court to reduce his sentence.

         Zandi argues that although at his sentencing the district court recited his base offense

level of 38, the fact that the district court imposed a 240-month below-Guidelines prison

sentence means the district court effectively sentenced him based on a lower base offense level

of 36.    However, even if we were to adopt this position, for which the record provides no

support, Zandi would remain ineligible for a § 3582(c) sentence reduction.    This is because, as


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illustrated above, Amendment 782 did not alter the sentencing ranges applicable to certain base

offense levels, it changed the base offense levels applicable to defendants responsible for certain

drug quantities.   See U.S.S.G. § 2D1.1(c) (2016 ed.); U.S.S.G. § 2D1.1(c) (2006 ed.).      To the

extent Zandi contends he received a below-Guidelines sentence because the district court held

him responsible for a lower quantity of methamphetamine, there is no support for that conclusion

in the record either.   Significantly, Zandi concedes that the district court adopted Probation’s

finding, noted in the PSR, that he was responsible for the equivalent of 300 kilograms of

methamphetamine.

         Because Zandi is ineligible for a § 3582(c)(2) sentence reduction, we need not reach his

contention that application to him of a 2011 amendment to the Sentencing Guidelines removing a

district court’s discretion to grant a downward departure upon resentencing if the defendant had

received a comparable departure at his initial sentencing would be an ex post facto violation.

See U.S.S.G. § 1B1.10(b) (2016 ed.); U.S.S.G. § 1B1.10 cmt. app. n.3 (2006 ed.); see also

United States v. Steele, 714 F.3d 751, 755 (2d Cir. 2013) (per curiam).    We note, however, that

our recent decision in United States v. Ramirez, 846 F.3d 615 (2d Cir. 2017), forecloses this

argument.

         We have considered all of Zandi’s arguments on appeal and find them to be without

merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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