15-1339-cr
United States v. Milhouse

                                 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of July, two thousand sixteen.

PRESENT:            JOSÉ A. CABRANES,
                    CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                    JEFFREY ALKER MEYER,
                                 District Judge. *


UNITED STATES OF AMERICA,

                            Appellee,                             15-1339-cr

                            v.

ARMANDE MILHOUSE, AKA SEALED DEFENDANT
16, AKA BEATLEJUICE, AKA MILLY,

                            Defendant-Appellant.**


FOR DEFENDANT-APPELLANT:                                      Armande Milhouse, pro se, Ayer, MA.




     *
    The Honorable Jeffrey Alker Meyer of the United States District Court for the District of
Connecticut, sitting by designation.
     **
          The Clerk of Court is directed to amend the caption as set forth above.

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FOR APPELLEE:                                              Steven D. Clymer, Geoffrey J.L. Brown,
                                                           Assistant United States Attorneys, for
                                                           Richard S. Hartunian, United States
                                                           Attorney for the Northern District of
                                                           New York, Syracuse, NY.

       Appeal from an order of the United States District Court for the Northern District of New
York (Lawrence E. Kahn, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

         Defendant-appellant Armande Milhouse (“Milhouse”), proceeding pro se, appeals from the
District Court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 782 to the U.S. Sentencing Guidelines, which lowered the base offense levels applicable
to most drug crimes under U.S.S.G. § 2D1.1. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

          Section 3582(c)(2) provides that a sentencing court may reduce a defendant’s term of
imprisonment if his sentence was based on a sentencing range subsequently lowered by the
Sentencing Commission. We review de novo a defendant’s eligibility for § 3582(c)(2) relief. United
States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013).

        We agree with the District Court that Milhouse is ineligible for a reduction pursuant to
§ 3582(c)(2). Milhouse pleaded guilty to violating 21 U.S.C. §§ 841(b)(1)(C) and 846 (conspiracy “to
distribute and possess with the intent to distribute more than 50 kilograms of marihuana”). The
presentence investigation report, which the District Court adopted, stated that Milhouse was a career
offender as defined by U.S.S.G. § 4B1.1, and that his guideline sentencing range was therefore 188
to 235 months. The District Court chose to impose a “non-guideline sentence” including 82
months’ imprisonment.

       A district court may not reduce a sentence pursuant to § 3582(c)(2) if “the amendment does
not have the effect of lowering the defendant’s applicable guideline range because of the operation
of another guideline,” as is the case here. U.S.S.G. § 1B1.10 Application Note 1(A); see U.S.S.G.
§ 1B1.10(a)(2)(B). Because Milhouse’s guideline range was based on his career-offender status,
Amendment 782 did not lower his applicable guideline. See, e.g., United States v. Mock, 612 F.3d 133,
138 (2d Cir. 2010). The District Court thus lacked the authority to reduce Milhouse’s sentence.1



   1
     As Milhouse points out, the 82-month sentence he actually received was within the range
provided by § 2D1.1. We once held that in such situations a district court has authority to reduce a
                                                   2
        Milhouse’s principal argument on appeal is that, pursuant to Christie, 736 F.3d at 197, vacatur
and remand are required because the District Court failed to offer any explanation for its denial of
his motion. That argument misunderstands Christie’s holding. Under Dillon v. United States, 560 U.S.
817, 826 (2010), district courts must follow a “two-step inquiry” when deciding motions for a
sentence reduction. The court must first determine whether the prisoner is eligible for a reduction. If
the prisoner is eligible, the court must then determine, in its discretion, whether a reduction is
warranted.

        Christie concerned only the second of these steps. We held that vacatur and remand are
required when “the reasons for the district court’s exercise of discretion are not apparent from the
record.” Christie, 736 F.3d at 196; see also id. at 194 (“We cannot uphold a discretionary decision
unless we have confidence that the district court exercised its discretion and did so on the basis of
reasons that survive our limited review.” (internal quotation marks omitted)).

        This case, in contrast, concerns the first Dillon step, and the record permits us to determine
that Milhouse was ineligible for a sentence reduction as a matter of law. Accordingly, while it would
have been helpful for the District Court to have provided its reasons when it denied Milhouse’s
motion, we need not remand. Cf. Christie, 736 F.3d at 196 (“The failure to state reasons will not
always require a remand.”). Moreover, the District Court eventually explained its reasoning when it
denied reconsideration of its previous decision. See United States v. Nichols, 56 F.3d 403, 411 (2d Cir.
1995) (observing that, although a notice of appeal generally divests the district court of jurisdiction,
the court can still “act in aid of [the] appeal” by clarifying a previous order (internal quotation marks
omitted)).

                                           CONCLUSION

       We have reviewed the remaining arguments raised by Milhouse on appeal and find them to
be without merit. For the foregoing reasons, we AFFIRM the order of the District Court.
Milhouse’s request for a stay or an immediate dismissal of this appeal, so that he may file a motion
pursuant to 28 U.S.C. § 2255 in district court, is DENIED as moot.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




sentence pursuant to Amendment 782. See United States v. Rivera, 662 F.3d 166, 181 (2d Cir. 2011).
Rivera, however, has been abrogated by Amendment 759. See United States v. Steele, 714 F.3d 751, 756
(2d Cir. 2013).

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