19‐335‐cr United States v. Gary Jacques

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 14th day of February, two thousand twenty.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, STEVEN J. MENASHI, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee,

‐v‐ 19‐335‐cr

ROBERT ALEXANDER GUERRERO, aka Al, aka Alex, CESAR POLANCO, aka Peechon, aka ʺPatrone,ʺ aka Pachong, aka ʺPetion,ʺ JEFFREY JACQUES, ANSEY GUERRIER, aka Lucky, aka Andre, Defendants,

GARY JACQUES, Defendant‐Appellant. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR APPELLEE: Jo Ann M. Navickas, Ryan C. Harris, Assistant United States Attorneys, for Richard P. Donaghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: Gary Jacques, pro se, Danbury, CT.

Appeal from an order of the United States District Court for the Eastern

District of New York (Gershon, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Defendant‐appellant Gary Jacques, proceeding pro se, appeals an order

entered January 18, 2019, denying his motion for reduction of his sentence. We assume

the partiesʹ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

In 2010, following a jury trial, Jacques was convicted on multiple drug

trafficking counts and, in a separate criminal proceeding the same year, pled guilty to

wire fraud. In a combined sentencing proceeding, the district court sentenced Jacques

principally to 228 monthsʹ imprisonment on all counts. In 2014, Jacques moved under

(c)(2) for a reduction in his sentence pursuant to Amendment 782 to the

United States Sentencing Guidelines. The district court granted the motion in 2015,

reducing Jacquesʹs sentence to 216 monthsʹ imprisonment. 2 In 2017, Jacques moved for a second reduction under Amendment 782. The district

court denied the motion, concluding that Jacques had not offered an additional ground

for reduction. In 2018, Jacques moved again for what he characterized as either a

further motion for reduction of his sentence or a motion for reconsideration of the

district courtʹs decision on his prior motion, relying on a Ninth Circuit decision, United

States v. Pimentel‐Lopez,

(9th Cir. 2016). The district court denied the

motion on January 18, 2019, holding that Jacques had not presented any additional

ground for reduction of his sentence and, alternatively, if the motion were considered a

motion for reconsideration, the motion was untimely and meritless because an out‐of‐

Circuit case decided after the district courtʹs 2015 decision reducing Jacquesʹs sentence

was not binding. Jacques appeals.

We review de novo a district courtʹs determination as to whether a

defendant is eligible for a sentence reduction. See United States v. Christie,

(2d Cir. 2013). Section 3582(c)(2) provides that a sentencing court may reduce a

defendantʹs term of imprisonment if he is eligible for a reduction, that is, if he has been

sentenced based on a guidelines range that was subsequently lowered by the Sentencing

Commission. See

(c)(2). While we have not decided the standard of

3 review for appeals from motions to reconsider denials of § 3582(c)(2) rulings, we need

not do so here because Jacquesʹs appeal fails even on de novo review.1

The district court did not err by denying Jacquesʹs motion to reduce his

sentence. Jacques had already received a reduction pursuant to Amendment 782, and

he was not eligible for a second reduction because the applicable guidelines range had

not been subsequently lowered by any other amendment. See United States v. Derry,

, 304‐07 (2d Cir. 2016) (determining that defendant was not eligible for second

sentence reduction where no subsequent amendment lowered guidelines range from

first reduction).

Jacques argues that the district court erred by failing to construe his motion

as a motion for reconsideration of the 2015 decision reducing his sentence. While

Jacques correctly notes that he asked the district court to ʺreconsider whether the

sentence imposed (216 months) resulted in a sentence disparity,ʺ Govʹt Appʹx at 239, he

also characterized the motion as a subsequent motion for a sentence reduction (rather

than one seeking reconsideration), sought to apply the legal standards applicable to

resentencing under § 3582 rather than the standards for reconsideration, and raised new

1 See United States v. Delva, 704 Fed. Appʹx 8, 9 (2d Cir. 2017) (ʺThis court has not decided what standard of review applies to appeals from motions to reconsider denials of § 3582(c)(2) rulings.ʺ).

4 arguments. Hence, Jacques viewed the motion as a new motion for a reduction of

sentence.

Moreover, even assuming the motion was a motion for reconsideration, the

district court did not abuse its discretion in denying it. First, the motion was untimely:

the Eastern Districtʹs local criminal rules require that any motion for reconsideration be

filed within 14 days. E.D.N.Y. Local Crim. R. 49.1(d). The district court decided

Jacquesʹs first sentence reduction motion in September 2015, and Jacques did not make

his third motion ‐‐ the subject of this appeal ‐‐ until June 2018, nearly three years later.

Jacques argues that the Government waived any objection to the timeliness of his motion

by failing to argue it in its response. But given that Jacquesʹs motion did not clearly

argue for reconsideration, the Governmentʹs failure to address the timeliness of the

motion did not constitute waiver. See United States v. Spruill,

(2d Cir.

2015) (ʺ[W]aiver can result only from a [litigantʹs] intentional decision not to assert a

right.ʺ).

Second, Jacques argues that the district court erred by not considering the

effect of Pimentel‐Lopez,

, on his sentence because courts are permitted to

consider intervening changes in the law on a motion for reconsideration. He is partially

correct. While courts may consider ʺan intervening change in controlling lawʺ on a

5 motion for reconsideration, United States v. Carr,

(2d Cir. 2009), Pimentel‐

Lopez is not controlling. Accordingly, we conclude that the district court did not abuse

its discretion by determining that the case did not warrant reconsideration of its prior

decision.

* * *

We have reviewed the remainder of Jacquesʹs arguments and conclude

they are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

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