USA v. Alberto Concepcion

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RESTREPO, SCIRICA and FISHER, Circuit Judges. Total Pages: 5. *Appellee's motion to file a sealed supplemental appendix is granted. The Clerk is directed to seal the supplemental appendix for a period of fifty years.

Case: 16-2819

Document: 003112540008

Page: 1

Date Filed: 02/15/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2819
___________
UNITED STATES OF AMERICA
v.
ALBERTO CONCEPCION,
also known as BERT,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 2-99-cr-00753-001)
District Judge: Honorable Susan D. Wigenton
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 10, 2017
Before: RESTREPO,SCIRICA and FISHER, Circuit Judges
(Opinion filed: February 15, 2017)
___________
OPINION*
___________
PER CURIAM
Federal prisoner Alberto Concepcion appeals from the District Court’s May 31,

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

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Date Filed: 02/15/2017

2016 order, which reduced his sentence pursuant to 18 U.S.C. § 3582(c)(2). Concepcion
argues that, in light of certain errors made by the District Court, he should have received
a larger sentence reduction. For the reasons that follow, we are unpersuaded by his
arguments, and we will affirm the District Court’s judgment.
I.
In 2000, Concepcion pleaded guilty to one count of conspiring to distribute heroin,
in violation of 21 U.S.C. §§ 841, 846. After determining that Concepcion’s range under
the U.S. Sentencing Guidelines was 292 months to 365 months, the District Court
imposed a sentence of 325 months. Concepcion appealed, and this Court affirmed the
judgment at C.A. No. 00–2132. Concepcion subsequently filed numerous actions
seeking post-conviction relief. All have been unsuccessful. See Concepcion v. Warden
Fort Dix FCI, 648 F. App’x 160, 160 (3d Cir. 2016) (per curiam) (summarizing his past
litigation).
In 2015, Concepcion filed a § 3582(c)(2) motion seeking to have his sentence
reduced based on Amendment 782, which lowered by two the base offense level for
many drug offenses. In an order, the District Court granted Concepcion’s motion and
reduced his sentence by 50 months to 275 months. That sentence falls in the middle of
Concepcion’s amended Guidelines range of 235 months to 293 months. Concepcion
appeals, seeking a sentence at the low end of the amended range.

constitute binding precedent.
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II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review de
novo a district court’s interpretation of the Sentencing Guidelines, and we review that
court’s decision to grant or deny a § 3582(c)(2) motion for abuse of discretion. United
States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). When, as here, a district court reduces
a prisoner’s sentence under § 3582(c)(2), we review the reduced sentence for
reasonableness. See United States v. Styer, 573 F.3d 151, 154-55 (3d Cir. 2009).
III.
In support of his appeal, Concepcion argues that the District Court erred by
granting the motion outside the presence of the parties and issuing its ruling before
Concepcion filed a reply in the District Court. In his reply brief before this Court,
Concepcion also raises a challenge to the notice of appearance form filed by the
Government’s attorney and asks that the Government’s brief “be nullified.”1 In both
filings, Concepcion raises challenges to his conviction and sentence on grounds that are

1

To the extent Concepcion raises other claims for the first time in his reply brief, those
claims are waived, and we do not consider them. See In re Surrick, 338 F.3d 224, 237
(3d Cir. 2003). Even if the claims were properly presented, we would conclude that they
are without merit.
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outside the limited scope of § 3582(c)(2).2 The Government asks that we affirm the
District Court’s order and seeks permission to file to a sealed supplemental appendix.
We conclude Concepcion’s arguments do not warrant disturbing the District
Court’s May 31, 2016 order. The District Court did not commit error by ruling on
Concepcion’s § 3582(c)(2) motion without holding a hearing or waiting for a reply from
Concepcion.3 “How a court decides to consider a § 3582(c)(2) motion is a matter of
discretion,” see Styer, 573 F.3d at 154, and a defendant need not be present during a
§ 3582(c)(2) proceeding, see Fed. R. Crim. P. 43(b)(4). Here, Concepcion’s § 3582(c)(2)
motion set forth the reasons why he believed his sentence should be reduced following
the adoption of Amendment 782. Under these circumstances, the District Court acted
within its discretion in ruling on his motion without further briefing or a hearing.
Once a district court determines that a prisoner is eligible for a sentence reduction,
that court considers the factors set forth in § 3553(a), “to the extent that they are
applicable,” 18 U.S.C. § 3582(c)(2), to determine whether a sentence reduction is
warranted. See Dillon v. United States, 560 U.S. 817, 827 (2010). Here, the District
Court’s May 31, 2016 order referenced the § 3553(a) factors and concluded that a

2

For example, Concepcion asserts that he is actually innocent and that the Government
relied on false evidence during his prosecution.
Contrary to Concepcion’s assertion, the District Court ruled without holding a hearing;
it did not hold a hearing without Concepcion.
3

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significant sentence reduction — 50 months — was warranted. Under the circumstances
of this case, we cannot conclude that this reduction was unreasonable.4
Finally, Concepcion’s arguments attacking his conviction and sentence on grounds
unrelated to Amendment 782 are not a basis for relief in this case under § 3582(c)(2).
See Dillon, 560 U.S. at 825-26 (addressing the limited scope of § 3582(c)(2)). We also
find Concepcion’s challenge to the Government’s brief to be without merit.5
IV.
Accordingly, we will affirm the District Court’s May 31, 2016 order. Appellee’s
motion to file a sealed supplemental appendix is granted. See generally Pansy v.
Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). The Clerk is directed to seal the
supplemental appendix for a period of fifty years.

We again note that Concepcion’s 275-month sentence remains in the middle of his
Guidelines range.
4

In any event, even if we struck the Government’s brief, Concepcion would not prevail
in this appeal.
5
5