United States of America v. Orlando Sanchez

BPS-307 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2636
____________________________________
UNITED STATES OF AMERICA
v.
ORLANDO SANCHEZ,
Appellant
_____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 92-cr-00319)
District Judge: Honorable William W. Caldwell
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
July 14, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: August 1, 2005)
_______________________
OPINION
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PER CURIAM
Orlando Sanchez, a federal prisoner, appeals pro se the order of the United States
District Court for the Middle District of Pennsylvania denying his motion for a reduction
of sentence filed pursuant to 18 U.S.C. § 3582(c)(2). For the reasons that follow, we will

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summarily affirm the judgment of the District Court.
In 1993, following a jury trial, Sanchez was convicted in the District Court of
conspiracy to distribute cocaine, possession by a felon of a firearm, and using or carrying
a firearm in relation to a drug trafficking crime. Sanchez was sentenced to a term of 386
months imprisonment. Sanchez’s conviction and sentence were affirmed on direct appeal
by this Court in 1994. The same year, the Supreme Court denied Sanchez’s petition for a
writ of certiorari. In May 2001, Sanchez filed a motion pursuant to 28 U.S.C. § 2255 in
the District Court, which was denied. This Court declined to issue Sanchez a certificate
of appealability. See United States v. Sanchez, C.A. No. 02-1626.
Sanchez, who is incarcerated at the Edgefield Federal Correctional Institution in
South Carolina, filed the underlying § 3582(c)(2) motion in the District Court on April
25, 2005. In his motion, Sanchez argued that he was entitled to a sentence reduction
because United States v. Booker, 125 S.Ct. 738 (2005), “effectively amended” the
Sentencing Guidelines by eliminating their mandatory nature. On May 10, 2005, the
District Court denied Sanchez’s motion. This timely appeal followed.
Section 3582(c)(2) provides in relevant part that
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 pursuant to 28 U.S.C. § 994(o) . . .
a court may reduce the term of imprisonment . . . if such a reduction is
consistent with the applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2). Sanchez does not allege an amendment to the Guidelines by the

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Sentencing Commission. Instead, Sanchez contends that he is entitled to relief under
§ 3582(c)(2) because his sentence runs afoul of Booker. Contrary to Sanchez’s
arguments, however, § 3582(c)(2) permits a reduction of sentence as a result of a
subsequent amendment of the Guidelines by the Sentencing Commission, not based on a
decision of the Supreme Court that is unrelated to an actual amendment of the Guidelines.
Cf. United States v. McBride, 283 F.3d 612 (3d Cir. 2002) (holding that Apprendi v. New
Jersey, 530 U.S. 466 (2000), does not afford relief under § 3582(c)(2) because such a
claim is “independent of and unrelated to any change in the Guidelines, and [is],
therefore, outside the scope of a sentence modification under § 3582(c)(2)”). Sanchez’s
reliance on United States v. Marmolejos, 140 F.3d 488 (3d Cir. 1998), is thus misplaced.
Marmolejos, decided in the context of a 28 U.S.C. § 2255 proceeding, involved the
retroactivity of an amendment to the Guidelines made by the Sentencing Commission.
Sanchez’s challenge to his sentence on the basis of Booker falls within the purview
of a motion under § 2255. Because Sanchez has already filed one § 2255 motion, he
would need authorization from this Court to file a second or successive § 2255 motion.
See 28 U.S.C. § 2244(b)(2). However, we note that we recently concluded that Booker is
not retroactively applicable to cases on collateral review. See Lloyd v. United States, 407
F.3d 608 (3d Cir. 2005).
Because this appeal presents “no substantial question,” see 3d Cir. LAR 27.4 and
I.O.P. 10.6, we will summarily affirm the District Court’s May 10, 2005, order.

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