Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2008

USA v. Gustavo Fernandez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1335




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Recommended Citation
"USA v. Gustavo Fernandez" (2008). 2008 Decisions. Paper 1440.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1440


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ALD-153                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-1335
                                     ___________

                            UNITED STATES OF AMERICA

                                            v.

                                GUSTAVO FERNANDEZ
                                also known as GUSTAVO

                                 Gustavo Fernandez,
                                                Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 99-cr-00256-3)
                       District Judge: Honorable Jan E. Dubois
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     March 6, 2008

         Before: SLOVITER, FISHER and HARDIMAN, CIRCUIT JUDGES.

                                (Filed: March 14, 2008 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Gustavo Fernandez appeals the District Court’s order denying his motion for a

modification of his sentence filed pursuant to 18 U.S.C. § 3582(c)(2). The procedural
history of this case and the details of Fernandez’s claims are well known to the parties, set

forth in the District Court’s thorough order, and need not be discussed at length. Briefly,

in January 2002, Fernandez pleaded guilty to conspiracy to possess with intent to

distribute heroin and cocaine base. In April 2004, he was sentenced to ninety-six months

in prison. He did not appeal. In December 2007, Fernandez filed a § 3582(c)(2) motion

seeking a modification of his sentence. The District Court denied the motion, and

Fernandez filed a timely notice of appeal.1

       Fernandez sought relief based on Amendment 706 to the sentencing guidelines

which lowered the base offense level for cocaine base offenses. However, the District

Court noted that Fernandez’s sentence was not based on the crack cocaine involved in the

conspiracy but rather the heroin. In his plea agreement, Fernandez stipulated that he

possessed with intent to distribute at least three but less than ten kilograms of heroin.

Thus, Amendment 706 is not applicable, and Fernandez’s § 3582 motion is without merit.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




       1
        Fernandez appears to appeal the District Court’s September 4, 2007 order denying
a separate motion for immediate deportation as well. However, because the notice of
appeal is dated January 23, 2008, it is untimely with respect to that order. Moreover, as
noted by the District Court, 8 U.S.C. § 1231 provides no private right of action to compel
the removal of an alien.

                                              2