UNITED STATES of America, Appellee, v. Keith JENNINGS, Defendant-Appellant.

No. 08-2104-cr.United States Court of Appeals, Second Circuit.
December 11, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, J.), it is herebyORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Andrew T. Baxter, United States Attorney, Northern District of New York (John. M. Katko and Elizabeth S. Riker, Assistant United States Attorneys, of counsel), Syracuse, N.Y., for Appellee.

Marsha R. Taubenhaus, New York, N.Y., Defendant-Appellant.

PRESENT: DENNIS JACOBS, Chief Judge, GUIDO CALABRESI and DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER
Defendant-Appellant Keith Jennings appeals from a decision and order by the district court for the Northern District of New York (McAvoy, J.) denying his motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

“A district court may not generally modify a term of imprisonment once it has been imposed[,]” but 18 U.S.C. § 3582(c)(2) provides a limited exception that allows a district court to “reduce the term of imprisonment of a defendant who

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has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [(“Commission”)]. . . .” Cortorreal v. United States, 486 F.3d 742, 744 (2d Cir. 2007) (per curiam) (internal quotation marks omitted). In 2007 and 2008, the Commission amended the United States Sentencing Guidelines by reducing the recommended Guidelines sentence for offenses involving cocaine base (collectively, the “crack-cocaine amendments”). See, e.g., U.S.S.G. app. C, amend. 706 (2007), as amended by amend. 711; id., amend. 715 (2008). The crack-cocaine amendments were made retroactive, subject to certain conditions. See U.S.S.G. § IB 1.10. Relying upon these amendments, [1] Jennings filed a motion for a reduced sentence under § 3582(c)(2) on February 22, 2008. In an order filed on April 15, 2008, the district court denied the motion after concluding that Jennings was not eligible for relief under the statute.

We review de novo a district court’s interpretation of 18 U.S.C. § 3582(c)(2) and the relevant Sentencing Guidelines. See United States v. Main, 579 F.3d 200, 202-03 (2d Cir. 2009).

The government, argues that the district court properly denied Jennings’s § 3582(c)(2) motion because he was sentenced to a mandatory minimum sentence of life imprisonment under 21 U.S.C. § 848(b). Jennings objects that he was convicted under 21 U.S.C. § 848(a), a lesser-included offense that requires a minimum sentence of only 20 years’ imprisonment. He argues that the aggravating elements necessary to sustain a § 848(b) conviction were not found by the jury beyond a reasonable doubt. See United States v. Torres, 901 F.2d 205, 240-41 (2d Cir. 1990). We need not decide this issue, however, because Jennings is ineligible for a § 3582(c)(2) sentence reduction on other grounds. The crack-cocaine amendments do not apply to offenses that involve more than 4.5 kg of cocaine base, which is now the highest offense level under U.S.S.G. § 2D1.1. Here, Jennings’s crime of conviction was found to involve 13.6 kg of cocaine base, in addition to 19.0 kg of cocaine and 185.0 kg of marijuana. Because Jennings’s offense involved an amount well above the 4.5 kg threshold, his sentence was not “based on a sentencing range that has subsequently been lowered” by the Sentencing Commission, and so § 3582(c)(2) does not apply to him.

We have considered all of Appellant’s remaining arguments and found them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

[1] Jennings’s motion in the district court was made pursuant to Amendment 706, and the district court made its decision under that amendment. On appeal, Jennings contends that it is Amendment 715. rather than Amendment 706, that applicable to his case because his charged offenses involved marijuana and powder cocaine in addition to cocaine base. The distinction between Amendment 706 and 715 is not relevant for the resolution of this appeal. Jennings is not eligible for relief under either amendment, and for the same reason.

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