UNITED STATES of America, Appellee, v. Alberto CASTILLO, Defendant-Appellant, 378 F. App'x 80

SUMMARY ORDER Defendant-appellant Alberto Castillo (“defendant”) pleaded guilty in the District Court to possession with intent to distribute five grams or more of cocaine base. See 21 U.S.C. § 841(a)(1), (b)(1)(B). The District Court calculated his sentencing range under the United States Sentencing Guidelines (U.S.S.G.) to be 188 to 235 months’ imprisonment. The Court based that calculation on the Guidelines for career offenders, see U.S.S.G. § 4B1.1, not on the Guidelines that set forth the offense levels for crack cocaine offenses, see id. § 2D1.1.

The Court then departed downward from defendant’s Guidelines range under U.S.S.G. § 5H1.3 and § 5K2.0 and sentenced defendant principally to 120 months’ imprisonment. Following appellant’s conviction, the United States Sentencing Commission instituted a two-level, retroactive reduction to the Guidelines offense level for crimes relating to crack cocaine. See generally United States v. Main, 579 F.3d 200, 202 (2d Cir.2009).

Appellant then moved in the District Court for a reduction of his sentence under 18 U.S.C. § 3582(c)(2), which provides that a court may modify a term of imprisonment “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The District Court denied defendant’s motion on the ground that defendant’s sentence was “based on” a “departure” from the career offender Guidelines and was not “explicitly based on” the amended offense levels for crack cocaine offenses.

We agree with the District Court that defendant’s sentence was not “based on” the amended crack cocaine offense levels. See United States v. Martinez, 572 F.3d 82, 84-86 (2d Cir.2009). Accordingly, we hold that defendant is not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have considered defendant’s remaining arguments on appeal and have determined that they are meritless. CONCLUSION For the foregoing reasons, the District Court’s February 29, 2009 order is AFFIRMED.