    17-1740
    United States v. Zobkiw (Hoey)


                            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 TO 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 5th day of October, two thousand eighteen.

    PRESENT:
                PETER W. HALL,
                GERARD E. LYNCH,
                      Circuit Judges,
                WILLIAM F. KUNTZ,*
                      District Judge.
    _____________________________________

    United States of America,

                                Appellee,
                       v.                                                      17-1740

    Nicole Zobkiw, AKA Sealed Defendant 1,
    Barry Balaban, AKA Sealed Defendant 1,
    Alejandro Noreiga

                                Defendants,

    Thomas Hoey, Jr.,

                      Defendant-Appellant.
    _____________________________________

    FOR APPELLANT:                                      Thomas Hoey, Jr., pro se, Brooklyn, NY.

    * Judge William F. Kuntz of the United States District Court for the Eastern District of New
    York, sitting by designation.
FOR APPELLEE:                                        Michael D. Maimin, Ian P. McGinley, Sarah
                                                     K. Eddy, of Counsel for Geoffrey S. Berman
                                                     United States Attorney for the Southern
                                                     District of New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Castel, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Thomas Hoey, Jr., proceeding pro se, appeals from the district court’s order denying his

motion for a reduced sentence under 18 U.S.C. § 3582(c)(2) and United States Sentencing

Guidelines (“Guidelines”) Amendment 782, which reduced the base offense level for various drug

offenses. We assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

       Section 3582(c) allows a district court to reduce a term of imprisonment if, inter alia, the

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

subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In a

§ 3582(c)(2) proceeding, we generally review a district court’s decision to grant or deny a

§ 3582(c)(2) motion for abuse of discretion, but review legal questions de novo. United States v.

Johnson, 732 F.3d 109, 113 (2d Cir. 2013).

       Here, the district court applied Amendment 782 at sentencing in calculating Hoey’s base

offense level to be 28. See Presentence Investigation Report (dated 3/5/15) ¶¶ 38, 40, 49, 76;

S.D.N.Y. 11-cr-337, doc. 210 (Gov’t Sentencing Submission) at 9–13 & n.3; doc. 227 (Sent. Tr.)

at 13–17, 61, 63; Statement of Reasons for the Sentence Imposed (dated 4/24/15) at 1 (listing 31


                                                2
as Hoey’s total offense level). Hoey disagrees and suggests that the district court calculated his

base offense level as 31. Hoey, however, misunderstands the district court’s calculations because

he overlooks that the district court calculated his base offense level as 28 and his total offense level

as 31. Because Hoey has already been sentenced with the benefit of Amendment 782, his

“sentencing range” has not “subsequently been lowered by [Amendment 782].”                                 18 U.S.C.

§ 3582(c)(2). Therefore, he is not eligible for a sentence reduction under Amendment 782.

         Accordingly, we AFFIRM the order of the district court.1

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk of Court




1
 Hoey argues that his appeal should be held in abeyance pending the district court’s decision of his de novo
resentencing motion, but this relief has already been denied by this panel at the motion state, and is, in any event,
moot given the district court’s resolution of the de novo resentencing motion in Hoey’s favor.
