12-2544
         United States v. Fulton


                                   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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals for
 2       the Second Circuit, held at the Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the 21st
 4       day of March, two thousand thirteen.
 5
 6       PRESENT:
 7
 8                         JOHN M. WALKER, JR.,
 9                         RICHARD C. WESLEY,
10                         CHRISTOPHER F. DRONEY,
11                      Circuit Judges.
12       _____________________________________
13
14       United States of America,
15
16                                  Appellee,
17
18                         v.                                    12-2544
19
20       Darrell George Fulton,
21
22                                  Defendant-Appellant,
23
24       Lance Green, AKA L, AKA L.A.,
25       Cedric Terry,
26
27                      Defendants.
28       _____________________________________
29
30       FOR DEFENDANT-APPELLANT:                 Darrell George Fulton, pro se,
31                                                Otisville, NY.
32
33
1    FOR APPELLEE:                 Emily Berger, Tali Farhadian,
2                                  Assistant United States Attorneys,
3                                  for Loretta E. Lynch, United States
4                                  Attorney for the Eastern District
5                                  of New York, Brooklyn, NY.
6
7         Appeal from the order of the United States District Court

 8   for the Eastern District of New York (Block, J.).

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

10   DECREED that the order of the district court is AFFIRMED.

11        Defendant-Appellant Darrell George Fulton, pro se, appeals

12   from the district court’s denial of his motion for a sentence

13   modification pursuant to 18 U.S.C. § 3582(c)(2).    We assume the

14   parties’ familiarity with the underlying facts, procedural

15   history of the case, and issues on appeal.

16         Section 3582 permits a district court to reduce a term of

17   imprisonment, when the underlying sentencing range has been

18   reduced, after considering the 3553(a)factors consistent with

19   Sentencing Commission policy statements.   18 U.S.C. § 3582(c)(2).

20   The Sentencing Commission has authorized § 3582(c)(2) reductions

21   where an amendment listed in § 1B1.10(c) has lowered the

22   Guidelines range applicable to the defendant.   See U.S.S.G.

23   1B1.10(a)(1).

24        In 2000, the Sentencing Commission amended § 1B1.1 to

25   “require[] that the initial selection of the offense guideline be

26   based only on the statute (or offense) of conviction rather than

27   on judicial findings of actual conduct . . . that will never be


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 1   made by the jury.”    United States v. Rivera, 

, 585

 2   (2d Cir. 2002).    The amendment is listed in § 1B1.10(c) and

 3   applies retroactively.    See U.S.S.G. § 1B1.10(c).

 4        We agree with the district court that this amendment does

 5   not apply to these facts.   Contrary to Fulton’s contention, the

 6   district court did not select a first-degree murder Guideline,

 7   U.S.S.G. § 2A1.1, as the applicable offense guideline.   First,

 8   the district court acknowledged during its November 1995

 9   sentencing hearing that the relevant uncharged robbery and murder

10   “could not have been computed into the determination of the

11   offense level” and could “only be considered for purposes of

12   upward departure.”   Second, during its December 1995 resentencing

13   hearing, the district court found that it had erroneously

14   included the robbery and murder as an “unspecified act[]” when

15   calculating Fulton’s base offense level on the robbery conspiracy

16   count and explicitly determined that those acts could be

17   considered only for purposes of an upward departure because they

18   had not been submitted to the jury.   Third, during the December

19   1995 resentencing hearing, the district court found that Fulton’s

20   total offense level was 25, which was well below the base offense

21   level of 43 that the court would have applied under U.S.S.G. §

22   2A1.1.   See id.   Moreover, the record does not suggest that the

23   district court downwardly departed from a base offense level of

24   43 to reach its total offense level of 25.   Finally, the district


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1    court fixed Fulton’s total offense level of 25 before using

2    U.S.S.G. § 2A1.1 to guide its upward departure.    Accordingly, the

 3   amendment is inapplicable.    See Poindexter v. United States, 556

 

, 90 (2d Cir. 2009).

 5        We have considered all of Fulton’s remaining arguments and

 6   find them to be without merit.    Accordingly, we AFFIRM the order

 7   of the district court.

 8                                    FOR THE COURT:
 9                                    Catherine O’Hagan Wolfe, Clerk
10




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