     15-3544
     United States v. Smith

                         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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of September, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            DEBRA A. LIVINGSTON,
 8                          Circuit Judges,
 9
10                JED S. RAKOFF,*
11                              District Judge.
12
13   - - - - - - - - - - - - - - - - - - - -X
14   United States of America,
15            Appellee,
16
17                -v.-                                           15-3544
18
19   Isiah Smith,
20            Appellant.†
21
22   - - - - - - - - - - - - - - - - - - - -X

           *   The Honorable Jed S. Rakoff, Judge for the United
     States District Court for the Southern District of New York,
     sitting by designation.
          †   The Clerk of Court is respectfully directed to amend
     the official caption to conform with the above.
                                                1
 1   FOR APPELLANT:                BARCLAY T. JOHNSON, Research and
 2                                 Writing Attorney, for Michael L.
 3                                 Desautels, Federal Public
 4                                 Defender, District of Vermont.
 5
 6   FOR APPELLEE:                 BARBARA A. MASTERSON, GREGORY L.
 7                                 WAPLES, Assistant United States
 8                                 Attorneys, for Eric S. Miller,
 9                                 United States Attorney for the
10                                 District of Vermont.
11
12        Appeal from a final order of the United States District Court
13   for the District of Vermont (Sessions, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
16   DECREED that the final order of the district court be AFFIRMED.
17
18        Isiah Smith pleaded guilty to one count of conspiracy to
19   distribute heroin and 28 grams or more of cocaine base, in
20   violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He
21   was sentenced to 78 months of imprisonment on June 4, 2012.

22        On January 6, 2015, Smith filed a pro se motion for a
23   reduction in sentence based on Amendment 782 to the U.S.
24   Sentencing Guidelines. The district court (Sessions, J.)
25   denied the motion on the ground that his sentence was already
26   shorter than the bottom of the Guidelines range that would result
27   from the two-level reduction, and that further reduction is
28   barred by section 1B1.10 of the Sentencing Guidelines, which
29   governs the retroactive reduction of sentences and forbids any
30   reduction that is “less than the minimum of the amended
31   guidelines range.” U.S.S.G. § 1B1.10(b)(2)(A). And though
32   the Sentencing Guidelines are now advisory at original
33   sentencing, see Booker v. United States, 543 U.S. 220 (2005),
34   the Supreme Court has held that they are mandatory in the context
35   of resentencing pursuant to 18 U.S.C. § 3582(c)(2). See Dillon
36   v. United States, 560 U.S. 817 (2010).

37        Smith appeals from the denial of his motion for a sentence
38   reduction, arguing that the section 1B1.10 prohibition on
39   reductions that result in sentences below the amended guidelines
40   range exceeds the Sentencing Commission’s statutory authority

                                     2
 1   and violates the separation of powers. He acknowledges that our
 2   precedent defeats his argument, citing United States v.
 3   Montanez, 717 F. 3d 287 (2d Cir. 2013); United States v. Erksine,
 4   717 F. 3d 131 (2d Cir. 2013); and United States v. Steele, 714
 5   F. 3d 751 (2d Cir. 2013). But he appeals nevertheless to preserve
 6   his claim for further review. As he anticipates, we adhere (as
 7   we must) to the decisions he cites.

 8

 9        Accordingly, we hereby AFFIRM the judgment of the district
10   court.

11                                FOR THE COURT:
12                                CATHERINE O’HAGAN WOLFE, CLERK




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