         14-123
         United States v. Moore



                                  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.

 1                      At a stated term of the United States Court of Appeals for the Second Circuit,
 2       held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3       York, on the 16th day of October, two thousand fourteen.
 4
 5       PRESENT:
 6                         DENNIS JACOBS,
 7                         ROBERT D. SACK
 8                         CHRISTOPHER F. DRONEY,
 9                                  Circuit Judges.
10       _____________________________________
11
12       United States of America,
13
14                                 Appellee,
15
16                         v.                                                  14-123
17
18       Christopher Moore,
19
20                                 Defendant-Appellant,
21
22       Daniel Gladden, AKA Raz, AKA Raz
23       Gladden, AKA Noodles Gladden, AKA
24       Noodles,
25
26                         Defendant.
27       _____________________________________
28
29       FOR DEFENDANT-APPELLANT:                         Christopher Moore, pro se, Pollock, LA.
30
 1   FOR APPELLEE:                                 Peter A. Norling and Matthew S. Amatruda,
 2                                                 Assistant United States Attorneys for Loretta E.
 3                                                 Lynch, United States Attorney for the Eastern
 4                                                 District of New York, Brooklyn, NY.
 5

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

 7   York (Garaufis, J.).

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

 9   DECREED that the order is AFFIRMED.

10          Defendant-Appellant Christopher Moore, pro se, appeals from the district court’s order

11   denying post-conviction submissions that seek to reduce his sentence. We assume the parties’

12   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

13          Moore’s arguments can be distilled to two claims: (1) he should be resentenced based on

14   the Guidelines that apply to powder cocaine offenses, not crack cocaine offenses, because

15   18 U.S.C. § 3582(c)(2) was not the appropriate vehicle to reduce his sentence; and (2) the

16   100-to-1 sentencing ratio of powder cocaine to crack cocaine violates the Equal Protection

17   Clause. The other issues he raised in the district court--including that the Fair Sentencing Act of

18   2010 should have applied to him, that the court should recalculate his criminal history category

19   in light of Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and that his sentence violated

20   Alleyne v. United States, 133 S. Ct. 2151 (2013)--are deemed abandoned. See Norton v. Sam’s

21   Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are

22   considered waived and normally will not be addressed on appeal.”); LoSacco v. City of

23   Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding, in the context of a pro se appeal, that

24   issues not raised in an appellate brief are abandoned). Additionally, to the extent that Moore


                                                      2
1    challenges the district court’s 2009 order reducing his sentence pursuant to § 3582(c)(2), we lack

2    jurisdiction to consider the challenge because that order is not before this Court; rather, Moore

3    has appealed only from the November 2013 order of the district court.

4           Moore has repeatedly tried to challenge his sentence on the basis that the trial evidence

5    established only that he dealt in powder cocaine and not crack cocaine. However, because he did

 6   not raise it on direct appeal, he is precluded from raising this claim. See United States v. Ben

 7   Zvi, 242 F.3d 89, 95 (2d Cir. 2001). In any event, he unsuccessfully raised the same challenges

 8   in a Fed. R. Crim. P. 33 motion, a 28 U.S.C. § 2255 motion, and most recently, a successive

 9   application. See United States v. Moore, 182 F.3d 902 (2d Cir. 1999) (unpublished); United

10   States v. Moore, E.D.N.Y. Docket No. 01-cv-4811; Moore v. United States, 2d Cir. Docket No.

11   14-2535. Thus, this claim has already been raised and rejected and is precluded under the

12   mandate rule.

13          Section 3582 permits a district court to modify a sentence in three limited circumstances:

14   (1) the Bureau of Prisons (“BOP”) has filed a motion, and either extraordinary and compelling

15   reasons warrant a reduction or the defendant is at least 70 years old and meets certain other

16   requirements, see 18 U.S.C. § 3582(c)(1)(A); (2) another statute or Federal Rule of Criminal

17   Procedure 35 expressly permits a sentence modification, see id. § 3582(c)(1)(B); or (3) the

18   defendant has been sentenced to a term of imprisonment based on a sentencing range that was

19   later lowered by the Sentencing Commission and certain other requirements are met, see id.

20   § 3582(c)(2).

21          Potentially relevant here is the relief provided under § 3582(c)(2). We review a district

22   court’s decision to grant or deny a § 3582(c)(2) motion for abuse of discretion, see United States


                                                      3
 1   v. Borden, 564 F.3d 100, 104 (2d Cir. 2009), and where questions of law are raised, they are

 2   reviewed de novo, see United States v. Main, 579 F.3d 200, 202-03 (2d Cir. 2009). As the

 3   district court determined, Moore was not eligible for such relief because his sentencing range

 4   had not been subsequently lowered by the Sentencing Commission since his last reduction in

 5   2009. With a total offense level of 40 and a criminal history category of III, his Guidelines range

 6   was still 360 months to life. See U.S.S.G. ch. 5 pt. A. Moore’s current sentence, 360 months of

 7   imprisonment, is the same as the minimum of the amended Guidelines range; so he was

 8   ineligible for a further sentence reduction. See U.S.S.G. § 1B1.10(b)(2). Additionally, Moore

 9   would not be eligible for relief under any other provision of § 3582: the BOP did not move to

10   reduce Moore’s sentence, and he did not identify any post-sentencing reduction of the applicable

11   guidelines range. As to Rule 35, relief would be untimely, and Moore pointed to no “clear error”

12   in the record that warranted correction. The district court therefore correctly denied Moore’s

13   request.

14          Moore’s equal protection claim is also without merit. He seeks reconsideration of

15   whether the crack cocaine laws violate the Equal Protection Clause in light of the Sixth Circuit’s

16   decision in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). However, the Sixth Circuit

17   vacated its decision in Blewett and subsequently held: “(1) the [FSA]’s new mandatory

18   minimums do not apply to defendants sentenced before it took effect; (2) § 3582(c)(2) does not

19   provide a vehicle for circumventing that interpretation; and (3) the Constitution does not provide

20   a basis for blocking [that interpretation].” United States v. Blewett, 746 F.3d 647, 650 (6th Cir.

21   2013) (en banc). In any event, we have considered and rejected equal protection arguments

22   similar to those that were advanced in Blewett. See, e.g., United States v. Samas, 561 F.3d 108,

23   110 (2d Cir. 2009).

                                                      4
1          We have considered all of Moore’s remaining arguments and find them to be without

2   merit. Accordingly, the order of the district court is hereby AFFIRMED.

3                                              FOR THE COURT:
4                                              Catherine O’Hagan Wolfe, Clerk
5
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