UNITED STATES v. Thomas Hoey, Jr., Defendant-Appellant. (2018)

SUMMARY ORDER

Thomas Hoey, Jr., proceeding pro se, appeals from the district court's order denying his motion for a reduced sentence under 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines (“Guidelines”) Amendment 782, which reduced the base offense level for various drug offenses. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Section 3582(c) allows a district court to reduce a term of imprisonment if, inter alia, the defendant was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In a § 3582(c)(2) proceeding, we generally review a district court's decision to grant or deny a § 3582(c)(2) motion for abuse of discretion, but review legal questions de novo. United States v. Johnson, 732 F.3d 109, 113 (2d Cir. 2013).

Here, the district court applied Amendment 782 at sentencing in calculating Hoey's base offense level to be 28. See Presentence Investigation Report (dated 3/5/15) ¶¶ 38, 40, 49, 76; S.D.N.Y. 11-cr-337, doc. 210 (Gov't Sentencing Submission) at 9–13 & n.3; doc. 227 (Sent. Tr.) at 13–17, 61, 63; Statement of Reasons for the Sentence Imposed (dated 4/24/15) at 1 (listing 31 as Hoey's total offense level). Hoey disagrees and suggests that the district court calculated his base offense level as 31. Hoey, however, misunderstands the district court's calculations because he overlooks that the district court calculated his base offense level as 28 and his total offense level as 31. Because Hoey has already been sentenced with the benefit of Amendment 782, his “sentencing range” has not “subsequently been lowered by [Amendment 782].” 18 U.S.C. § 3582(c)(2). Therefore, he is not eligible for a sentence reduction under Amendment 782.

Accordingly, we AFFIRM the order of the district court.¹

FOOTNOTES

1.   Hoey argues that his appeal should be held in abeyance pending the district court's decision of his de novo resentencing motion, but this relief has already been denied by this panel at the motion state, and is, in any event, moot given the district court's resolution of the de novo resentencing motion in Hoey's favor.