United States v. Albanese

Opinion

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1506

UNITED STATES,

Appellee,

v.

ARTHUR J. ALBANESE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

Robert G. Levitt and Christopher T. Braddock on brief for appellant. Margaret E. Curran, United States Attorney and James H. Leavey, Assistant United States Attorney on brief for appellee.

December 16, 1998

Per Curiam. Upon careful review of the briefs, appendices, and record, we conclude that the district court properly denied defendant's motion nominally brought under 18 U.S.C. 3582(c)(2). As a threshold matter, the district court lacked authority under 3582(c)(2) to grant the relief sought by defendant, namely vacation of his conviction under 18 U.S.C. 924(c)(1). The district court's authority to reduce a sentence under 3582(c)(2) is strictly limited. See United States v. Jordan, F.3d , 1998 WL 804788 (1st Cir. November 25, 1998). Accordingly, we may uphold the denial of defendant's motion, even without considering its merits. Seeid. at *1. Nonetheless, even were we to consider the merits, the result would be no different. To the extent that the district court might have had authority to entertain defendant's motion, whether under 28 U.S.C. 2255 or otherwise, still the denial would have been proper, essentially for the reasons stated in the magistrate judge's Report and Recommendation dated March 5, 1998. The district court's conclusion that defendant "carried" a firearm during and in relation to his drug trafficking offense, so that his conviction under 924(c)(1) should be upheld even in light of Bailey v. United States, 516 U.S. 137 (1995) also was not inconsistent with Muscarello v. United States, 118 S.Ct. 1911, 1913-18 (1998), decided after the district court issued its ruling.

We decline to consider defendant's new argument about jury instructions, which argument was not clearly developed before the district court and is not supported by a record adequate for appellate review before this court. Affirmed. See 1st Cir. Loc. R. 27.1.