     15-3809
     United States v. Clark

                         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 ASUMMARY 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   3rd day of February, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            BARRINGTON D. PARKER,
 8            DEBRA ANN LIVINGSTON,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   UNITED STATES OF AMERICA,
13            Appellee,
14
15                -v.-                                           15-3809
16
17   EDDIE LAMONT CLARK,
18            Defendant-Appellant.
19
20   - - - - - - - - - - - - - - - - - - - -X
21
22   FOR APPELLANT:                          BARCLAY T. JOHNSON, Office of the
23                                           Federal Public Defender, District
24                                           of Vermont, Burlington, VT.
25
26   FOR APPELLEE:                           BARBARA A. MASTERSON (Gregory L.
27                                           Waples, on the brief), Assistant


                                                1
 1                                United States Attorney, for Eric
 2                                S. Miller, United States Attorney
 3                                for the District of Vermont,
 4                                Burlington, VT.
 5
 6        Appeal from a judgment of the United States District Court
 7   for the District of Vermont (Murtha, J.).

 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the judgment of the district court be AFFIRMED.

10        Eddie Lamont Clark appeals from the judgment of the United
11   States District Court for the District of Vermont (Murtha, J.)
12   denying Clark’s motion for a reduced sentence pursuant to 18
13   U.S.C. § 3582(c)(2). We assume the parties’ familiarity with
14   the underlying facts, the procedural history, and the issues
15   presented for review.

16        Clark was convicted of conspiracy to distribute cocaine.
17   At sentencing, relying on the 2009 edition of the United States
18   Sentencing Guidelines, the district court calculated Clark’s
19   Guidelines range to be 210-262 months’ imprisonment. Pursuant
20   to a plea agreement, the district court principally sentenced
21   Clark to 144 months’ imprisonment.

22        Once Amendment 782 to the United States Sentencing
23   Guidelines (which reduced offense levels for certain drug
24   offenses by two levels) was made retroactive, Clark moved to
25   reduce his sentence to 120 months’ imprisonment, the mandatory
26   minimum sentence under the statute, to reflect a reduction
27   comparably less than the amended Guidelines range, as permitted
28   by § 1B1.10 of the Guidelines. The district court denied his
29   motion. The district court calculated his amended Guidelines
30   range to be 168-210 months’ imprisonment; based on the current
31   version of § 1B1.10, which prohibits a sentence reduction to
32   “a term that is less than the minimum of the amended guideline
33   range” except in certain cases where a defendant has provided
34   substantial assistance to the government, the district court
35   concluded that Clark was ineligible for a sentence reduction
36   because his sentence of 144 months’ imprisonment fell below the
37   amended Guidelines range. The district court also rejected
38   Clark’s contention that the current version of § 1B1.10, which


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 1   took effect after his sentencing, violates the Ex Post Facto
 2   Clause.

 3        1. A court may reduce a defendant’s sentence if he has been
 4   “sentenced to a term of imprisonment based on a sentencing range
 5   that has subsequently been lowered by the Sentencing
 6   Commission,” and “if such a reduction is consistent with
 7   applicable policy statements issued by the Sentencing
 8   Commission.” 18 U.S.C. § 3582(c)(2); see also Dillon v. United
 9   States, 560 U.S. 817, 819 (2010).

10        The Sentencing Commission’s § 1B1.10 policy statement
11   prohibited the district court from granting Clark a sentence
12   reduction below 168 months’ imprisonment because that was the
13   minimum of his amended Guidelines range. The district court
14   correctly found Clark ineligible for a sentence reduction.

15        2. The Ex Post Facto Clause prohibits “the imposition of
16   punishment more severe than the punishment assigned by law when
17   the act to be punished occurred.” Weaver v. Graham, 450 U.S.
18   24, 30 (1981). A particular change in law violates the Ex Post
19   Facto Clause if it “presents a sufficient risk of increasing
20   the measure of punishment attached to the covered crimes.”
21   Peugh v. United States, 133 S. Ct. 2072, 2082 (2013) (internal
22   quotation marks omitted).

23        The fact that § 1B1.10 was revised after Clark’s sentencing
24   to restrict eligibility for a sentence reduction authorized by
25   a later Guidelines amendment does not violate the Ex Post Facto
26   Clause because, as we recently held, it does not present a risk
27   of increasing his, or any other defendant’s, punishment.
28   United States v. Ramirez, -- F.3d --, 2017 U.S. App. LEXIS 1297,
29   at *19-20, 2017 WL 359652, at *6-7 (2d Cir. Jan. 25, 2017).

30        Accordingly, and finding no merit in Clark’s other
31   arguments, we hereby AFFIRM the judgment of the district court.

32                                FOR THE COURT:
33                                CATHERINE O’HAGAN WOLFE, CLERK




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