13-2887
    United States v. Jimenez



                               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.

            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
    15th day of September, two thousand fourteen.

    PRESENT:
                ROBERT A. KATZMANN,
                                  Chief Judge,
                ROBERT D. SACK,
                GERARD E. LYNCH,
                                  Circuit Judges.
    ____________________________________________

    UNITED STATES OF AMERICA,

                                Appellee,

                       v.                                        No. 13-2887

    SHANNON JIMENEZ,

                                Defendant-Appellant,

    GERALD MILLER, AKA Prince, WILFREDO
    ARROYO, AKA C-Justice, C.J., ROY HALE,
    AKA Pookie, DAVID ROBINSON, AKA Bing,
    HARRY HUNT, FABIO ARCINIEGAS, AKA
    Chico, JULIO HERNANDEZ, WAVERLY
    COLEMAN, AKA Teddy, RONALD TUCKER,
    CYNTHIA BROWN, AKA Bunny, RAYMOND
    ROBINSON, AKA Ace,


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                       Defendants.

____________________________________________

For Appellee:                                 Emily Berger, Richard M. Tucker, Assistant United
                                              States Attorneys, for Loretta E. Lynch, United
                                              States Attorney for the Eastern District of New
                                              York, Brooklyn, NY.

For Defendant-Appellant:                      Michael B. Lumer, James C. Neville, Lumer &
                                              Neville, New York, NY.

       Appeal from an order entered by the United States District Court for the Eastern District

of New York (Dearie, J.) denying motions for a modification of a term of imprisonment.

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

DECREED that the order of the district court be and is hereby AFFIRMED.

       Defendant-Appellant Shannon Jimenez appeals a July 9, 2013 order of the United States

District Court for the Eastern District of New York (Dearie, J.) denying Jimenez’s motions for a

modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

       We review the district court’s order for abuse of discretion, see United States v. Wilson,

, 52 (2d Cir. 2013) (per curiam), which occurs where a district court “‘base[s] its

ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or

render[s] a decision that cannot be located within the range of permissible decisions.’” 

States v. Borden, 

, 104 (2d Cir. 2009)).

       Jimenez filed two motions for a modification of his sentence pursuant to 18 U.S.C.

§ 3582(c)(2) following amendments to the United States Sentencing Guidelines (“Guidelines”)



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that increased the quantity of cocaine base necessary to trigger the base offense level calculated

by the district court at his original sentencing. Jimenez’s motions emphasize that whereas the

district court’s finding at sentencing that his offense involved “at least” 1.5 kilograms of cocaine

base was sufficient to trigger a base offense level of 38 at the time, see United States v. Miller,

, 684 (2d Cir. 1997), recent amendments to the Guidelines have raised the relevant

quantity-based threshold to 8.4 kilograms or more of the drug to reach the same offense level.

See U.S.S.G. Supp. App. C, Amends. 706 & 750; U.S.S.G. § 2D1.1(c) (Drug Quantity Table).

       In denying Jimenez’s motion, the district court noted that Jimenez’s presentence report,

which the court adopted at sentencing, attributed more than 15 kilograms of cocaine base to his

offense. The district court further recalled, “without doubt or hesitation,” that evidence at trial

showed that the offense involved more than 8.4 kilograms of the drug. J.A. 124. It therefore

concluded that Jimenez would be in the same position with respect to the base offense level if he

were sentenced in accordance with the Guidelines amendments as he was at his original

sentencing. Accordingly, the district court denied the motion. See 

(“When

presented with a motion to reduce a sentence pursuant to § 3582(c)(2), a district court first must

consider whether the defendant is eligible for a reduction by calculating the Guidelines range that

would have been applicable had the amended Guidelines been in place at the time the defendant

originally was sentenced.”).

       On appeal, Jimenez contends that the district court violated his Sixth Amendment rights

and the spirit of Apprendi v. New Jersey, 

(2000), by making its own finding that

Jimenez’s offense involved more than 8.4 kilograms of cocaine base. This argument is plainly

foreclosed by precedent. See United States v. Erskine, 

, 136 (2d Cir. 2013) (noting


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that “[t]he Supreme Court has held that a sentence reduction under 18 U.S.C. § 3582(c)(2) does

‘not implicate the Sixth Amendment right to have essential facts found by a jury beyond a

reasonable doubt’” (quoting Dillon v. United States, 

, 828 (2010))); cf. United

States v. Rios, --- F.3d ---, 

, at *4 (Sept. 2, 2014). To the extent that Jimenez

contends that the district court clearly erred in finding that his offense involved more than 8.4

kilograms of cocaine base, we find that the district court referenced ample evidence from trial

and its prior sentencing to support its conclusion that the offense involved nearly twice the 8.4

kilograms required by the applicable Guidelines amendments. Cf. 

(rejecting Jimenez’s co-defendants’ argument that the district court clearly erred in finding that

the offense involved at least 15 kilograms of cocaine base). Accordingly, we conclude that the

district court did not abuse its discretion in denying Jimenez’s motions for a modification of his

sentence.

       We have considered Jimenez’s remaining arguments and find them to be without merit.

For the reasons stated herein, the order of the district court is AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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