CLD-036                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-2954
                                      ___________

                           UNITED STATES OF AMERICA,

                                            v.

                              FRANKIE GONZALEZ,
                                         Appellant
                      ____________________________________

                      Appeal from the United States District Court
                               for the District of New Jersey
                              (D.C. Criminal No. 96-cr-0114)
                   District Judge: Honorable Dickinson R. Debevoise
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 12, 2010

              Before: RENDELL, FUENTES and SMITH, Circuit Judges

                               (filed: November 18, 2010 )
                                        _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      Frankie Gonzalez, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the District of New Jersey denying his motion for a

reduction in sentence pursuant to 18 U.S.C. § 3582(c) and an order denying his motion
for reconsideration. Because this appeal presents no substantial question, we will

summarily affirm the judgment of the District Court.

        In 1996, Gonzalez was convicted on two counts: RICO conspiracy, 18 U.S.C.

§ 1962(d), and conspiracy to distribute and to possess with intent to distribute a

controlled substance (heroin), 21 U.S.C. § 846. The District Court sentenced Gonzalez to

two concurrent life terms.1 We affirmed on direct appeal, and the Supreme Court denied

certiorari review. Gonzalez next filed a 28 U.S.C. § 2255 motion, which the District

Court denied as untimely filed. This Court denied a certificate of appealability in August

2001.

        In March 2008, Gonzalez moved in the District Court to reduce his sentence

pursuant to § 3582(c)(2), arguing that he was entitled to relief under Amendment 591 to

the Sentencing Guidelines. Gonzalez also filed a motion for discovery, seeking copies of

documents pertaining to his criminal case. The District Court denied both motions,

holding that there were no grounds upon which to compel discovery and that Gonzalez

“is not eligible for [a sentence] modification, pursuant to 18 U.S.C. § 3582(c)(2), because

the Sentencing Commission has not lowered the sentencing range for 18 U.S.C. §§ 1961,

1962(c), or 1962(d); or 21 U.S.C. §§ 841(a)(1) or 846.” Gonzalez filed a timely motion


1
  The District Court‟s Judgment noted that the sentence was imposed for the following
reasons: “At the top level of a major heroin distribution organization since its inception
in 1992. An organization which employed guns and violence and had a government
informant murdered. A plan which defendant knew. Defendant participated in all
aspects of the organization and, for a significant period of time, was its organizer and
leader.”
                                             2
for reconsideration of the order denying his § 3582(c) motion, see Fed. R. Civ. P. 59(e),

which the District Court denied.2 Gonzalez appealed.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 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 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). Amendment 591, which took effect in November 2000, is listed in the

Guidelines as applying retroactively. See U.S.S.G. § 1B1.10(c). Nevertheless, 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).

2
  In the motion for reconsideration, Gonzalez argued that the District Court had
misconstrued his § 3582(c) motion as being premised on changes in the Sentencing
Guidelines to the base offense level for crack cocaine offenses. In support of his motion
for reconsideration, Gonzalez attached a page from the electronic docket which recorded
the District Court‟s order as “denying . . . Motion to Reduce Sentence re Crack Cocaine
Offense.” The District Court denied the motion for reconsideration, noting that the
docket entry was “obvious error” because the order itself “had nothing to do with crack
cocaine or any other form of cocaine and simply referred to the § 3582(c)(2) motion that
[Gonzalez] had filed.” We agree. Thus, to the extent that Gonzalez‟s Rule 59(e) motion
was based on the docket entry‟s reference to “cocaine,” the District Court did not abuse
its discretion in denying that motion. See Max‟s Seafood Café ex rel. Lou- Ann, Inc. v.
Quinteros, 

, 673 (3d Cir. 1999).

                                             3
       There are a “sequence of steps for the court to follow” in calculating a defendant‟s

sentence under the Guidelines. United States v. Johnson, 

, 684 (3d Cir.

1998) (emphasis omitted). At the first step, a sentencing court refers to the Statutory

Index of the Sentencing Manual (Appendix A) in choosing the offense guideline in

Chapter Two. §§ 1B1.1(a); 1B1.2(a). At the second step, the sentencing court

“[d]etermine[s] the base offense level and appl[ies] any appropriate section specific

offense characteristics, cross references, and special instructions contained in the

particular guideline in Chapter Two in the order listed.” § 1B1.1(b). “At this stage, the

court can factor in relevant conduct, unless the guidelines otherwise specify.” United

States v. Aquino, 

, 127-28 (3d Cir. 2009) (citing § 1B1.3(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).

Therefore, 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. 2001) (noting that the “amendment reflects a change

from the permissive to the mandatory.”).


                                              4
        Gonzalez was convicted of RICO conspiracy under 18 U.S.C. §1962(d). Then, as

now, the applicable offense guideline for the RICO conviction was § 2E1.1. That

provision prescribes a base offense level of either 19 or “the offense level applicable to

the underlying racketeering activity,” whichever is greater. § 2E1.1(a)(2). Furthermore,

if the underlying conduct violated state law, the offense level corresponding to the most

analogous federal offense is to be used. See Application Note 2 to § 2E1.1. In this case,

the Government indicated that at this second stage the sentencing court applied the

offense level applicable to first degree murder found in § 2A1.1, because Gonzalez‟s

conduct violated the New Jersey statute governing murder. See N.J. Stat. Ann. § 2C:11-

3(a).

        Gonzalez emphasizes that the “Grand Jury never returned an indictment charging

[him] with murder.” Petitioner‟s Motion in Opposition of Possible Summary Action, 4.

Amendment 591 does not afford Gonzalez any relief, however, because, while the

Amendment limits the use of uncharged conduct in the initial selection of the applicable

guideline, it does not prohibit the sentencing court from considering such conduct at the

second step of the sentencing process. Here, the sentencing court‟s first step application

of § 2E1.1 as the appropriate offense guideline was based on Gonzalez‟s statute of

conviction, not on his other conduct. Indeed, the sentencing court did not use the relevant

conduct attributed to him (murder) to select an offense guideline from the Statutory

Index. “Rather, [Gonzalez‟s] relevant conduct was used at the next stage in the

sentencing calculation–to identify the pertinent „underlying racketeering activity‟
                                             5
pursuant to § 2E1.1‟s cross reference.” United States v. Hurley, 

, 40 (1st Cir.

2004). This process is permissible. See United States v. Moreno, 

, 1219-

20 (11th Cir. 2005) (holding that Amendment 591 does not restrict the use of judicially-

found facts to select the base offense level).

       Because the District Court did not err in denying Gonzalez‟s § 3582(c) motion, we

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