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United States v. Ortiz

United States Court of Appeals, Second Circuit

February 26, 2015

UNITED STATES OF AMERICA, Appellee,
v.
EDWARD N. ORTIZ, Defendant-Appellant

Argued November 14, 2014

Appeal from the United States District Court for the District of Connecticut (Thompson, J.) revoking his term of supervised release and sentencing him to five years' imprisonment. On appeal, Ortiz argues that the district court erred in his post-revocation sentencing in determining that the statutory maximum term of imprisonment the court could impose, upon revocation of his supervised release, was five years. Instead, he urges us to find that our decision in United States v. Savage, 542 F.3d 959 (2d Cir. 2008), decided after his original sentencing, should retroactively apply to his original offense--changing the classification of the original offense and thereby lowering the statutory maximum term of imprisonment in post-revocation sentencing. We affirm, holding that, in determining the statutory maximum sentence that may be imposed as part of a post-revocation sentence, the post-revocation sentence is determined by reference to the law in effect at the time of the defendant's underlying offense.

RICHARD S. CRAMER, Hartford, Ct., for Defendant-Appellant Edward N. Ortiz.

AMY CHRISTINE BROWN, Assistant United States Attorney (Deirdre M. Daly, United States Attorney for the District of Connecticut; Sandra S. Glover, Robert M. Spector, Assistant United States Attorneys, on the brief), for Appellee the United States of America.

Before: POOLER, PARKER, and WESLEY, Circuit Judges.

OPINION

Page 177

PER CURIAM

Edward N. Ortiz appeals from the December 18, 2013 judgment of the United States District Court for the District of Connecticut (Thompson, J.) revoking his term of supervised release and sentencing him to five years' imprisonment. On appeal, Ortiz argues that the district court erred in his post-revocation sentencing in determining that the statutory maximum term of imprisonment the court could impose, upon revocation of his supervised release, was five years. Instead, he urges us to find that our decision in United States v. Savage, 542 F.3d 959 (2d Cir. 2008), decided after his original sentencing, should retroactively apply to his original offense--changing the classification of the original offense and thereby lowering the statutory maximum term of imprisonment in post-revocation sentencing.

We affirm, holding that in determining the statutory maximum sentence

Page 178

that may be imposed as part of a post-revocation sentence, the post-revocation sentence is determined by reference to the law in effect at the time of the defendant's underlying offense.

BACKGROUND

Ortiz pleaded guilty in 2003 to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He acknowledged being an armed career criminal under 18 U.S.C. § 924(e)(1) based on his three predicate convictions. As an armed career criminal, Ortiz faced a statutory sentence enhancement: a mandatory minimum term of 180 months' imprisonment and a maximum term of life imprisonment. Under the U.S. Sentencing Guidelines, he started with a Guidelines range of 180-210 months, calculated from a total offense level of 30 and a criminal history category of VI. He received a downward departure after the district court granted the government's motion for substantial assistance under U.S.S.G. § 5K1.1. The departure yielded a new Guidelines range of 120-150 months, based on a total offense level of 26 and a criminal history category of VI.

The district court sentenced him principally to 120 months' imprisonment, to be followed by five years' supervised release. It classified his offense under 18 U.S.C. § 3559 as a Class A felony, for which the maximum post-revocation sentence is five years under 18 U.S.C. § § 3583(b) and 3583(e)(3). The district court explained ...


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