United States v. Ugarte-Castro

• Court: Court of Appeals for the First Circuit
• Decided: September 29, 2000
• Docket: 99-1795
• Status: Published

Opinion

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1795

UNITED STATES,

Appellee,

v.

ALFREDO UGARTE-CASTRO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Chief Judge, Stahl and Lynch, Circuit Judges.

Alfredo Ugarte-Castro on brief pro se. Guillermo Gil, United States Attorney, Jorge E. Vega- Pacheco, Assistant United States Attorney, and Nelson Perez Sosa, Assistant United States Attorney, on brief for appellee.

September 29, 2000 Per Curiam. Appellant Ugarte-Castro appeals a

denial of his motion for a second resentencing under 18

U.S.C. § 3582(c)(2). Appellant now seeks a reduction in his

term of imprisonment under the "safety valve" provision.

See 18 U.S.C. § 3553(f). He says that in 1996, when a

lowering of his guidelines' sentencing range eventuated in

his being resentenced to a 188-month term of imprisonment,

his attorneys "should have also moved for a reduction in his

sentence under the safety valve provision." The district

court denied the current motion on the merits of the safety

valve factors.

The district court correctly denied the motion,

although it need not have reached the merits. The court

lacked authority under § 3582(c)(2) to modify the previously

imposed sentence. Appellant did not appeal from the 1996

resentencing judgment. His current motion is not based on

a "subsequently" lowered guidelines range, nor on any of the

other "limited circumstances" which trigger a court's

authority, under § 3582(c), to modify a previously imposed

sentence. United States v. Jordan, 162 F.3d 1, 5 (1st Cir.

1998), cert. denied, 526 U.S. 1105 (1999).

As the government points out, a district court is

vested with the authority to entertain motions to correct a sentence pursuant to 28 U.S.C. § 2255. However, we do not

construe this motion as one brought under § 2255, since it

appears to have been filed well beyond the statute's

limitations period, appellant insists that it was not

intended as a § 2255 petition, and neither the court nor the

parties addressed the complexities of § 2255 below.

For these reasons, we also need not reach the

parties' arguments about the temporal applicability of the

safety valve provision to appellant's sentence or

resentence.

Affirmed.

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