          United States Court of Appeals
                      For the First Circuit

No. 12-1180

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       JORGE APONTE-GUZMÁN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpi, U.S. District Judge]


                              Before

                   Torruella, Selya and Howard,
                          Circuit Judges.



     Héctor E. Gúzman, Jr., Federal Public Defender, and Héctor L.
Ramos-Vega, Assistant Federal Public Defender, Supervisor, Appeals
Section, on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Luke Cass, Assistant United States Attorney, on brief
for appellee.



                         October 16, 2012
               SELYA, Circuit Judge.             In response to a national hue and

cry about the disparity between sentences for powder cocaine

offenses and crack cocaine offenses,1 the Sentencing Commission

lowered the advisory guideline ranges for certain of the latter

offenses.      See USSG App. C, Amends. 748, 750.              The Commission made

it clear that the new guideline ranges applied retroactively.                     See

USSG App. C, Amend. 759. Amendments 750 and 759 (hereinafter, "the

new guideline amendments") went into effect on November 1, 2011.

               In    fashioning      this     relaxed    regime,    the    Sentencing

Commission took pains to safeguard the district courts' discretion

with       respect    to     reduction      of   sentences    previously     imposed:

sentencing          courts    were   empowered,         not   compelled,     to   make

retroactive sentence adjustments case by case.                     This appeal tests

the    limits        of    this   preserved        discretion.       After    careful

consideration, we affirm the district court's refusal to disturb

the appellant's sentence.             The tale follows.

               On June 11, 2009, a federal grand jury sitting in the

District of Puerto Rico indicted fifty-eight defendants.                          The

indictment alleged that the defendants had participated in a

massive drug-trafficking enterprise.                    Defendant-appellant Jorge

Aponte-Guzmán was named in six substantive counts.




       1
       Throughout this opinion, we use the term "crack cocaine" as
a shorthand for the more technical description of the same
substance ("cocaine base").

                                             -2-
            The appellant initially maintained his innocence.                   On

April 21, 2010, however, he changed his plea and entered a guilty

plea on two counts: conspiracy to possess with intent to distribute

various   controlled      substances     (including   crack      cocaine),   and

conspiracy to possess firearms in furtherance of a drug-trafficking

crime.      See    21   U.S.C.   §§   841(a)(1),   846,   860;    18   U.S.C.   §

924(c)(1).     In a written plea agreement, the parties stipulated

that the appellant would be held responsible for at least 150, but

less than 500, grams of crack cocaine. The district court accepted

the change of plea.       The appellant's adjusted offense level was 32

and the court placed him in criminal history category I.                  These

calculations yielded a guideline sentencing range ("GSR") of 135-

168 months.       On July 27, 2010, the court sentenced the appellant to

a 150-month incarcerative term (as jointly recommended by the

parties).     The court then dismissed the other charges originally

brought against the appellant.

            On August 3, 2010, Congress enacted the Fair Sentencing

Act of 2010 (FSA), now codified at 21 U.S.C. §§ 841, 960.

Pertinently, the FSA gave the Sentencing Commission emergency

authority to lower the guideline penalties for crack cocaine

offenses.     See United States v. Curet, 670 F.3d 296, 309 (1st Cir.

2012). As part of its response, the Commission promulgated the new

guideline amendments, which collectively implemented the FSA's

emergency authorization; modified the Drug Quantity Table, USSG


                                       -3-
§2D1.1(c), to increase the amounts of crack cocaine required to

trigger    certain   sequential   base      offense   levels;   lowered   the

guideline ranges for crack cocaine offenses accordingly; ensured

that the lowered guideline ranges would for the most part be

available for retroactive application; and made other facilitative

changes not relevant here.

            In anticipation of the November 1, 2011 effective date,

the appellant filed a motion for a sentence reduction under 18

U.S.C. § 3582(c)(2).2      The district court ordered supplemental

briefing and sought a recommendation from the probation office.

After considering these materials, the court, in a succinct docket

order entered on December 27, 2011, denied the motion.

            Despite its brevity, the docket order illuminated the

court's rationale.     According to the order, the court declined to

reduce the sentence "in the exercise of its discretion."                  The

appellant,    it   explained,   was    not   a   garden-variety   narcotics



     2
         This statute provides:

     [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
     pursuant to 28 U.S.C. § 994(o), upon motion of the
     defendant or the Director of the Bureau of Prisons, or on
     its own motion,     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.

18 U.S.C. § 3582(c)(2).

                                      -4-
offender but, rather, "was a drug point owner" who had "entered

into an extremely beneficial and narrowly tailored plea agreement

in which he stipulated [to] a very reduced crack amount."                   To make

matters worse, he had been "involved with firearms."                    This timely

appeal ensued.

           This court reviews a district court's denial of a section

3582(c)(2) motion for abuse of discretion.                See United States v.

Caraballo,   552   F.3d   6,    8   (1st    Cir.      2008);   United    States   v.

Rodríguez-Peña, 470 F.3d 431, 432 (1st Cir. 2006) (per curiam).

Leaving to one side claims of procedural error — no such claim is

asserted   here    —   such    review,     in   the    sentencing   context,      is

tantamount to review for reasonableness. See, e.g., Gall v. United

States, 552 U.S. 38, 51 (2007); United States v. Martin, 520 F.3d

87, 92 (1st Cir. 2008).

           The appellant's attack on the district court's order

starts with a suggestion that the order is ambiguous and can be

interpreted as finding him ineligible for a sentence modification.

The ambiguity, he says, derives from the cut-off point contained in

the new guideline amendments: under those amendments, defendants

who have been convicted of trafficking in more than 450 grams of

crack cocaine are effectively ineligible for retroactive sentence

adjustments.   In the appellant's view, this ambiguity may have led

to the denial of his motion.               After all, his plea agreement

stipulated that he should be held responsible for between 150 and


                                      -5-
500 grams of crack cocaine; and the sentencing court may have

thought that because the upper end of this range exceeded the cut-

off point, the appellant was ineligible per se for a sentence

reduction.   Building on this speculative foundation, the appellant

asseverates that the uncertainty about whether a defendant who

pleads guilty to a drug-quantity spread that traverses several base

offense levels (some of which lie above the ceiling for eligibility

contemplated by the new guideline amendments), rather than to a

precise drug quantity is eligible for a sentence reduction under

the new guideline amendments demands the application of the rule of

lenity.   We think not.

           We do not gainsay that "[i]n a criminal case, the rule of

lenity requires a court to resolve true statutory uncertainty in

the accused's favor."     United States v. Ahlers, 305 F.3d 54, 62

(1st Cir. 2002).   But even though this rule is ingrained in the

criminal law, it has no pertinence here for at least two reasons.

           First, the case law makes pellucid that the rule of

lenity, which has a laser-like statutory focus, does not apply to

drug-weight calculations under the sentencing guidelines.      See,

e.g., United States v. Gonzalez, 407 F.3d 118, 124 (2d Cir. 2005);

United States v. McEntire, 153 F.3d 424, 438 n.16 (7th Cir. 1998).

Such calculations do not present questions of statutory ambiguity

and, therefore, do not raise concerns that may be redressed through

an application of the rule of lenity.


                                 -6-
          Second — and equally as dispositive — the     question of

how to create an interface between the new guideline amendments and

a drug-quantity spread that encompasses amounts both above and

below the cut-off point is not implicated here.     In denying the

appellant's sentence reduction motion, the district court stated in

no uncertain terms that it was exercising its discretion.      This

explicit statement shows beyond hope of contradiction that the

court, as a threshold matter, treated the appellant as a person

eligible for, but not deserving of, a sentence reduction.

          The appellant's fallback argument is that, given his

eligibility for a sentence reduction and the possible applicability

of a lowered sentencing range,3 the district court abused its

discretion in refusing to diminish his sentence.      This argument

lacks force.

          Section 3582(c)(2) itself states that, in a case in which

a modified sentence may be proper, "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



     3
       The Drug Quantity Table, USSG §2D1.1(c), as amended by the
new guideline amendments, no longer contains a single GSR for drug-
trafficking offenses involving between 150 and 500 grams of crack
cocaine. Depending on how one parses the parties' drug-quantity
stipulation, the defendant's GSR under the new guideline amendments
could have been as low as 87-108 months or as high as 135-168
months (the same GSR that obtained when the appellant's sentencing
took place).

                               -7-
Sentencing    Commission."          18       U.S.C.    §    3582(c)(2)     (emphasis

supplied).    By using the precatory term "may," rather than the

directory term "shall," Congress indicated its intent to make

section 3582(c)(2) sentence reductions discretionary, not a matter

of right.    See United States v. Rodgers, 461 U.S. 677, 706 (1983)

(explaining that "[t]he word 'may,' when used in a statute, usually

implies some degree of discretion"). Consistent with this indicium

of Congressional intent, the case law makes manifest that the grant

or denial of a section 3582(c)(2) motion is a matter committed to

the sentencing court's sound discretion.                    See, e.g., Rodríguez-

Peña, 470 F.3d at 432.           Section 3582(c)(2) "instructs a court to

consider any applicable § 3553(a) factors and determine whether, in

its discretion, the reduction . . . is warranted in whole or in

part under the particular circumstances of the case."                      Dillon v.

United States, 130 S. Ct. 2683, 2692 (2010).

            There   is    nothing       in   the   text     of the   new guideline

amendments that diminishes this discretion.                  In promulgating those

amendments, the Sentencing Commission empowered district courts to

reduce some crack cocaine sentences previously imposed; it did not

direct the district courts to make such reductions, come what may.

            In the case at hand, the district court — though it

admittedly took a hard line —            acted within the encincture of its

discretion.     The      judge    who    imposed      the    appellant's    original

sentence also passed upon the sentence reduction motion.                     Giving


                                          -8-
due weight to his superior coign of vantage and his hands-on

familiarity with the case, we must approach his refusal to shrink

the sentence with a considerable measure of respect.

           To be sure, deferential review is never to be confused

with blind allegiance to the decision of the lower court.           Here,

however,   the   district   court's   order,   though   terse,   contained

adequate reasons for its action. The court specifically referenced

the appellant's role as "a drug point owner," a drug trafficker

"involved with firearms," and a co-conspirator who had "entered

into an extremely beneficial . . . plea agreement" and had received

the benefit, via the government's stipulation, of "a very reduced

crack amount."4

           There is one last data point.         If the district court

deemed the appellant to have been responsible for 280 or more grams

of crack cocaine — a decision that would have fit comfortably with

the drug-quantity stipulation contained in the plea agreement — the

appellant's GSR would not have changed at all.      In other words, the

GSR would have remained at 135-168 months.        This parity would, of

course, argue powerfully against the need for a sentence reduction.



     4
       It is common ground that, in drug cases, sentencing ranges
under the advisory guidelines are influenced to a great extent by
drug quantity. See, e.g., United States v. Platte, 577 F.3d 387,
392 (1st Cir. 2009); United States v. Collado, 975 F.2d 985, 995
(3d Cir. 1992). Consequently, the government's stipulation to what
the district court described as "a very reduced crack amount" may
well have resulted in an artificial lowering of the appellant's
original sentence.

                                  -9-
            We need go no further.     The catalogued factors plainly

indicate that the court gave individualized consideration to the

appellant's situation and had specific — and not unreasonable —

grounds for denying a sentence reduction.     The doubt about whether

the new guideline amendments actually affected the appellant's GSR

buttresses the court's conclusion.      In these circumstances, there

was no abuse of discretion.



Affirmed.




                                -10-
