Opinion
No. 10-771-cr.
February 22, 2011.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Edward R. Korman, Judge).
UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Murray Richman, Bronx, NY, for Defendant-Appellant.
Taryn A. Merkl, Assistant United States Attorney (Loretta E. Lynch, United States Attorney for the Eastern District of New York, on the brief, Emily Berger, Assistant United States Attorney, of counsel), Office of the United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
SUMMARY ORDER
Defendant-Appellant Jack Ferranti ("defendant" or "Ferranti") was convicted, following a two-week trial, of arson homicide in violation of 18 U.S.C. § 844(f); arson conspiracy in violation of 18 U.S.C. § 371; sixteen counts of mail fraud in violation of 18 U.S.C. § 1341; and witness tampering in violation of 18 U.S.C. § 1512(b). He was sentenced principally to 435 months of imprisonment. This appeal follows two unsuccessful habeas petitions under 28 U.S.C. § 2255. Defendant now appeals from a February 12, 2010 order by the District Court denying his motion to reduce his sentence, pursuant to 18 U.S.C § 3582(c)(2), based on Amendment 591 to the United States Sentencing Guidelines. We assume parties' familiarity with the remaining facts and procedural history of this action.
We review a district court's denial of a motion to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for "abuse of discretion." United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) ("A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions." (alteration, citations, and quotation marks omitted)). Our determination of whether a defendant is eligible for a sentence reduction because his sentence was "`based on a sentencing range that was subsequently lowered by the sentencing Commission'" is reviewed de novo "because [such a] determination is a matter of statutory interpretation." United States v. Main, 579 F.3d 200, 202-03 (2d Cir. 2009) (quoting United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009)).
"A district court may not generally modify a term of imprisonment once it has been imposed." Cortoireal v. United States, 486 F.3d 742, 744 (2d Cir. 2007). An exception is available, however, under Section 3582(c)(2), when the Sentencing Commission amends the United States Sentencing Guidelines. Amendment 591 to the Guidelines, which took effect on November 1, 2000, requires the initial selection of the applicable offense guideline to be based only on statute, rather than on judicial findings of actual offense conduct. See U.S.S.G. app. C, amend. 591 (2000). "Amendment 591 applies only to the choice of the appropriate offense guideline, not to the selection of the base offense level" set forth by the guideline. United States v. Rivera, 293 F.3d 584, 586 (2d Cir. 2002).
According to the Guidelines, "if death resulted or the offense was intended to cause death or serious bodily injury, [the district court shall] apply the most analogous guidelines from Chapter Two, part A (Offenses Against the Person) if the resulting offense level is greater than that determined above." U.S.S.G. § 2K1.4(c)(1). As explained by the District Court in its Memorandum and Order of February 12, 2010, Ferranti was "properly sentenced under the first degree murder guideline, which was the most analogous Guideline provision," A. 56-57. See 18 U.S.C. § 1111(a) (murder committed by arson is murder in the first degree). We agree. Accordingly, the District Court did not err in denying defendant's motion for sentencing under Section 3582(c)(2).
CONCLUSION
We have considered all of defendant's claims on appeal and have found them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.