08-4302-cr
United States v. Izquierdo




                             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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 15th day
of March, two thousand and ten.

PRESENT:
            PIERRE N. LEVAL,
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges.
_______________________________________________

United States of America,

                               Appellee,
                       v.                                           No. 08-4302-cr

Moises Izquierdo,

                        Defendant-Appellant.
______________________________________________

For Appellant:                               MOISES IZQUIERDO, pro se,
                                             Lisbon, Ohio.

For Appellee:                                LEV L. DASSIN, Acting United States
                                             Attorney, for the Southern District of New
                                             York (Telemachus P. Kasulis and Katherine
                                             Polk Failla, Assistant United States
                                             Attorneys, of counsel).
       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the decision of the district court is AFFIRMED.

       Defendant-Appellant Moises Izquierdo, pro se and incarcerated, appeals from an order of

the United States District Court for the Southern District of New York (Griesa, J.), denying his

motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduction of his term of imprisonment. We

assume the parties’ familiarity with the facts, procedural history, and issues raised in this appeal.

       We review de novo a district court’s statutory interpretation. See United States v.

Williams, 551 F.3d 182, 185 (2d Cir. 2009).

       The statute Izquierdo relies on, 18 U.S.C. § 3582(c)(2), states in pertinent part that:

       [I]n the case 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 . . . the court may reduce the term of imprisonment, after considering
       the factors set forth in section 3553(a) to the extent that they are applicable, if such
       a reduction is consistent with applicable policy statements issued by the Sentencing
       Commission.

Effective November 1, 2007, the Sentencing Commission reduced by two levels the base offense

level associated with each quantity of crack cocaine, and gave that change retroactive effect by

adding it to the list of amendments in U.S.S.G. § 1B1.10(c). See U.S.S.G. § 2D1.1 (2007);

U.S.S.G. Supp. to App. C, amendment 706 & 713 (2008). The policy statement of the

Sentencing Commission provides:

       [A] reduction in the defendant's term of imprisonment is not authorized under 18
       U.S.C. § 3582(c)(2) and is not consistent with this policy statement if: . . . (ii) an
       amendment listed in subsection (c) is applicable to the defendant but the
       amendment does not have the effect of lowering the defendant's applicable
       guideline range because of the operation of another guideline or statutory
       provision (e.g., a statutory mandatory minimum term of imprisonment).




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U.S.S.G. § 1B1.10, application note 1, subsection 1(A). A sentence required by the statutory

mandatory minimum is not “‘based on a sentencing range that has subsequently been lowered by

the Sentencing Commission.’” Williams, 551 F.3d at 185 (quoting 18 U.S.C. § 3582(c)(2)).

        As a result of his conviction for a felony drug offense pursuant to 21 U.S.C. §§ 846 and

841(a)(1), Appellant was subject to a mandatory minimum sentence of not less than ten years

imprisonment. Appellant was sentenced in compliance with the applicable statutory requirement

that he receive a mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A). Appellant was,

therefore, ineligible for modification pursuant to 18 U.S.C. § 3582(c)(2) of the imposed

imprisonment term. See Williams, 551 F.3d at 185-86.

        Appellant also asserts that the district court erred in not applying 18 U.S.C. § 3553(f)’s

safety valve provision to reduce his sentence below the mandatory statutory minimum. Appellant

made no showing either at the time of his original sentence or in his § 3582(c)(2) motion that he is

eligible for safety valve relief.

        We have reviewed Appellant’s remaining arguments and find them to be without merit.

For the reasons stated above, the judgment of the district court is AFFIRMED.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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