UNITED STATES of America, Appellee, v. Eddie Lamont CLARK, Defendant-Appellant, 675 F. App'x 95

SUMMARY ORDER Eddie Lamont Clark appeals from the judgment of the United States District Court for the District of Vermont (Murtha, J.) denying Clark’s motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. Clark was convicted of conspiracy to distribute cocaine. At sentencing, relying on the 2009 edition of the United States Sentencing Guidelines, the district court calculated Clark’s Guidelines range to be 210-262 months’ imprisonment.

Pursuant to a plea agreement, the district court principally sentenced Clark to 144 months’ imprisonment. Once Amendment 782 to the United States Sentencing Guidelines (which reduced offense levels for certain drug offenses by two levels) was made retroactive, Clark moved to reduce his sentence to 120 months’ imprisonment, the mandatory minimum sentence under the statute, to reflect a reduction comparably less than the amended Guidelines range, as permitted by § 1B1.10 of the Guidelines. The district court denied his motion.

The district court calculated his amended Guidelines range to be 168-210 months’ imprisonment; based on the current version of § 1B1.10, which prohibits a sentence reduction to “a term that is less than the minimum of the amended guideline range” except, in certain cases where a defendant has provided substantial assistance to the government, the district court concluded that Clark was ineligible for a sentence reduction because his sentence of 144 months’ imprisonment fell below the amended Guidelines range.

The district court also rejected Clark’s contention that the current version of § 1B1.10, which took effect after his sentencing, violates the Ex Post Facto Clause. 1. A court may reduce a defendant’s sentence if he has been “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by, the Sentencing Commission,” and “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also Dillon v. United States, 560 U.S. 817, 819, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010).

The Sentencing Commission’s § 1B1.10 policy statement prohibited the district court from granting Clark a sentence reduction below 168 months’ imprisonment because that was the minimum of his amended Guidelines range. The district court correctly found Clark ineligible for a sentence reduction. 2. The Ex Post Facto Clause prohibits “the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

A particular change in law violates the Ex Post Facto Clause if it “presents a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013) (internal quotation marks omitted). The fact that § IB 1.10 was revised after Clark’s sentencing to restrict eligibility for a sentence reduction authorized by a later Guidelines amendment does not violate the Ex Post Facto Clause because, as we recently held, it does not present a risk of increasing his, or any other defendant’s, punishment. United States v.

Ramirez, 846 F.3d 615, 622-25 (2d Cir. 2017). Accordingly, and finding no merit in Clark’s other arguments, we hereby AFFIRM the judgment of the district court.