BLD-014                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-4124
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                            OMAR TORRES-MONTALVO,

                                         Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                           (D.C. Crim. No. 95-cr-00070-1)
                      District Judge: Honorable Jose L. Linares
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 17, 2014
               Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                            (Opinion filed: October 20, 2014)
                                  _________________

                                      OPINION
                                  _________________


PER CURIAM

      Omar Torres-Montalvo, a federal prisoner proceeding pro se, appeals from the

United States District Court for the District of New Jersey’s order denying his motion

under 18 U.S.C. § 3582(c)(2) for a reduction in sentence. Because the appeal presents no
substantial question, we will grant the Government’s motion to summarily affirm the

District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       In 1996, a jury found Torres-Montalvo guilty of one count of conspiracy to

kidnap, 18 U.S.C. §1201(c), two counts of kidnapping (one count for each victim), 18

U.S.C. § 1201(a)(1), and one count of conspiracy to distribute cocaine, 21 U.S.C. § 846.

He was sentenced to life imprisonment. We affirmed. See United States v. Palma-

Ruedas, 

, 859 (3d Cir. 1997).

       In 2013, Torres-Montalvo filed in the District Court a motion under § 3682(c)(2),

seeking to reduce his sentence through the retroactive application of Amendment 591 of

the Sentencing Guidelines. See U.S.S.G. § 1B1.10(c) (providing that Amendment 591 is

retroactive). The District Court denied the motion, holding that Amendment 591 offered

no relief because the sentencing court “selected the appropriate offense guideline[.]”

Torres-Montalvo appealed.1 The Government has moved for summary affirmance.

       Section 3582(c)(2) authorizes a district court to reduce a term of imprisonment in

the case of a defendant who has been sentenced based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. See § 3582(c)(2). A


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Where the denial of relief
under § 3582(c)(2) involves a legal question concerning eligibility, we review the District
Court’s decision de novo. See United States v. Sanchez, 

, 277 (3d Cir.
2009). “By contrast, when the district court determines that a defendant is eligible for
relief but declines to reduce his sentence, our review is for an abuse of discretion.”
United States v. Weatherspoon, 

, 420 (3d Cir. 2012) (citing 

n.4).
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sentence may be reduced under § 3582(c)(2) only when “such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.” Id.; United

States v. McBride, 

, 614 (3d Cir. 2002). The applicable policy statement

provides that a sentence reduction is not authorized if the retroactive amendment “does

not have the effect of lowering the defendant’s applicable guideline range.”

§ 1B1.10(a)(2)(B).

       A sentencing court is required to “follow [a sequence of steps] to arrive at the

correct guideline range.” United States v. Boney, – F.3d – 

, at *5 (3d

Cir. Sept. 15, 2014); see also United States v. Johnson, 

, 684-85 (3d Cir.

1998) (describing each step). At the first step, a sentencing court refers to the Statutory

Index of the Guidelines Manual in choosing the offense guideline in Chapter Two that is

applicable to the offense of conviction. U.S.S.G. §§ 1B1.1(a); 1B1.2(a). Prior to

Amendment 591, a sentencing court proceeding under the first step was authorized to use

the Statutory Index as an “aid in finding the most applicable guideline among several

possibilities.” United States v. Diaz, 

, 302 (3d Cir. 2001). The sentencing

court could select an offense guideline based on the defendant’s actual conduct, even if

that conduct did not result in conviction. See United States v. Smith, 

, 297

(3d Cir. 1999). Amendment 591 modified the Guidelines to require a sentencing court to

apply the offense guideline referenced in the Statutory Index that corresponds to the

statute under which the defendant was convicted. See 

(3d Cir.


                                              3
2001) (noting that the “amendment reflects a change from the permissive to the

mandatory.”); see also Boney, 

, at *5 n.6 (“Amendment 591 modified

the Sentencing Guidelines to clarify that the sentencing court must use the applicable

guideline provided in the Statutory Index (Appendix A) for the offense of conviction.”).

       In this case, at step one, the sentencing court referred to U.S.S.G. § 2A4.1, the

applicable offense guideline for Torres-Montalvo’s kidnapping conviction under 18

U.S.C. § 1201(a)(1).2 Because this is the procedure now mandated by Amendment 591,

that Amendment did not have the effect of lowering Torres-Montalvo’s applicable

sentencing range. § 1B1.10(a)(2)(B). Therefore, Torres-Montalvo is not entitled to a

reduction in his sentence under § 3582(c)(2). To the extent that Torres-Montalvo

challenges the sentencing court’s subsequent assessment of the base offense level,

specific offense characteristics, and adjustments, relief is not available. See United States

v. Moreno, 

, 1220 (11th Cir. 2005) (holding that Amendment 591 applies

only to the selection of the relevant offense guideline); United States v. Rivera, 

, 586 (2d Cir. 2002) (stating that the “plain wording of Amendment 591 applies only



2
  The sentencing court separated Torres-Montalvo’s convictions into two groups. See
U.S.S.G. § 3D1.1(a). The first group consisted of conspiracy to kidnap, kidnapping of
one victim, and conspiracy to distribute cocaine. The second group included conspiracy
to kidnap, kidnapping of the other victim, and conspiracy to distribute cocaine. The
sentencing court applied § 2A4.1 to both groups because kidnapping carried the highest
total offense level. See U.S.S.G. § 3D1.3(a); see also United States v. Salgado, 

, 1137 (11th Cir. 2014) (noting that U.S.S.G. 3D1.3(a) required an assessment of
“which of the three grouped convictions would yield the highest adjusted offense level by
calculating Salgado’s offense level under the guideline for each offense.”).
                                             4
to the choice of the applicable offense guideline, not to the subsequent selection of the

base offense level.”).

       Because the District Court did not err in denying Torres-Montalvo’s § 3582(c)(2)

motion, we conclude that his appeal presents us with no substantial question.

Accordingly, we grant the Government’s motion and will summarily affirm the judgment

of the District Court. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6.




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