08-3826-cr
     USA v. Smith

                                                                                            Nevas, J.
                                                                                               D. Ct.
                                                                                          03-cr-00261


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
     ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GO VERNED BY THIS COURT’S
     LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
     PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
     CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
     BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
     ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
     W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
     UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
     PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
     OF THE ORDER O N SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
     DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 5th day of January, two thousand ten,
 4
 5   PRESENT:
 6               Pierre N. Leval,
 7               Barrington D. Parker,
 8               Richard C. Wesley,
 9                              Circuit Judges,
10   ______________________________________
11
12   United States of America,
13
14                          Appellee,
15
16                   -v.-                                                No. 08-3826-cr
17                                                                       SUMMARY ORDER
18
19   Marvin Smith,
20
21                     Defendant-Appellant.
22   _______________________________________
23
 1   FOR DEFENDANT-APPELLANT: Robert J. Sullivan, Jr., Westport, CT.
 2
 3   FOR APPELLEE:                         Michael E. Runowicz, Assistant United States Attorney
 4                                         (Sandra S. Glover, Assistant United States Attorney, Nora
 5                                         R. Dannehy, Acting United States Attorney, District of
 6                                         Connecticut, on the brief).
 7
 8        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
 9   DECREED that the judgment of the district court is AFFIRMED.
10
11          Defendant-appellant Marvin Smith appeals from an order of the United States District Court

12   for the District of Connecticut (Nevas, J.) dated July 24, 2008, which reduced Smith’s sentence of

13   imprisonment from 120 months to 99 months, in accordance with Smith’s amended Sentencing

14   Guidelines (“Guidelines”) range, and denied Smith’s request for a sentence below the new

15   Guidelines range. We assume the parties’ familiarity with the underlying facts and procedural

16   history of the case.

17          Smith argues on appeal that the district court erred when it denied his request for a sentence

18   below his new Guideline range. The district court correctly denied the request. A district court “may

19   not generally modify a term of imprisonment once it has been imposed.” United States v. McGhee,

20   

, 225 (2d Cir. 2009) (per curiam) (quoting Cortoreal v. United States, 

,

21   744 (2d Cir. 2007)(per curiam)). 18 U.S.C. § 3582(c)(2) does give district courts limited authority

22   to reduce a defendant’s term of imprisonment, if that term was based on a Guidelines range that since

23   has been amended and the Sentencing Commission authorized the retroactive application through

24   a policy statement. The district court exercised this authority in reducing Smith’s Guideline range

25   from between 108 to 135 months to between 87 to 108 months. However, Smith’s argument that

26   the district court had the authority to further reduce his sentence is foreclosed by our decision in

27   United States v. Savoy, 

(2d Cir. 2009) (per curiam), where we held that “district courts


                                                     -2-
 1   lack the authority when reducing a sentence pursuant to § 3582(c)(2) to reduce that sentence below

 2   the amended Guidelines range where the original sentence fell within the applicable Guidelines

 3   range.” 

 4                                           CONCLUSION

 5           For the foregoing reasons, the judgment of the district court is AFFIRMED.

 6

 7                                                For the Court:
 8                                                Catherine O’Hagan Wolfe, Clerk
 9
10                                                By: __________________________
11




                                                   -3-