United States of America v. Angel Manuel Pinet, also known as “Jose”, ANGEL M. PINET

BLD-044 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 09-3061
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UNITED STATES OF AMERICA
v.
ANGEL MANUEL PINET,
also known as “Jose”,
ANGEL M. PINET,
Appellant
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Crim. No. 97-cr-00169-002)
District Judge: William W. Caldwell
_______________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 13, 2009
Before: MCKEE, RENDELL and CHAGARES, Circuit Judges
(Filed on: January 13, 2010 )
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OPINION
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The majority of Courts of Appeals hold that motions for re-sentencing under §1
3582 are criminal in nature. See, e.g., United States v. Byfield, 522 F.3d 400, 402 (D.C.
Cir. 2008); United States v. Espinoza-Talamantes, 319 F.3d 1245, 1245-46 (10th Cir.
2003); United States v. Arrango, 291 F.3d 170, 171-72 (2d Cir. 2002). As such, we will
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PER CURIAM
Angel M. Pinet appeals pro se from the District Court’s June 24, 2009 order that
adjusted his sentence pursuant to 18 U.S.C. § 3582(c)(2). Because we conclude that this
appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R.
27.4; I.O.P. 10.6.
I.
In August 1998, a federal jury convicted Angel M. Pinet of possession with intent
to distribute cocaine and cocaine base, conspiracy to distribute, use of a telephone to
commit a drug crime, and interstate travel to promote unlawful activity. He was
sentenced to 360 months to life on the first two counts, and forty-eight and sixty month
terms on counts three and four, to be served concurrently. Pinet filed a motion for a
reduction of his sentence for an offense involving cocaine base pursuant to 18 U.S.C. §
3582(c)(2) in May 2008. On June 24, 2009, the District Court amended Pinet’s offense
level and reduced his sentence on counts one and two to 292 months. His original
sentence for the remaining charges remains in effect. Pinet filed his notice of appeal on
July 14, 2009.1

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treat Pinet’s § 3582 motion as criminal in nature for the purposes of computing his time to
appeal. Although the notice of appeal initially appeared to be untimely, see Fed. R. App.
P. 4(b)(1), Pinet asserts that he did not receive the District Court’s order until July 7,
2009. He includes the envelope in which the order was sent to him by the District Court,
on which someone has written “Received 7-7-09" with a signature that is not
Pinet’s. Thus, Pinet’s notice of appeal, dated July 8, 2009, should be considered filed
within the time to appeal. See United States v. Grana, 864 F.2d 312, 316 (3d Cir. 1989).
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II.
We have jurisdiction under 28 U.S.C. § 1291. Our review of a District Court’s
interpretation of the Sentencing Guidelines is de novo. See United States v. Sanchez, 562
F.3d 275, 277-78 (3d Cir. 2009). We review a court’s ultimate determination of a
defendant’s motion to reduce sentence under § 3582(c)(2) for abuse of discretion. See
United States v. Mateo, 560 F.3d 152, 154 & n.2 (3d Cir. 2009).
III.
Pinet has not explained how the District Court’s disposition of his § 3582 motion
would constitute an abuse of discretion. The District court reduced Pinet’s sentence to
292 months on counts one and two, after determining that the amended guideline range
for those counts is 292-365 months. In his § 3582 motion, however, Pinet challenges the
sentencing court’s original calculation of his offense level, and bases his calculation of an
amended guideline range upon what he sees as errors in that initial calculation. Pinet
argues that the sentencing court violated his right to due process under Townsend v.
Burke, 334 U.S. 726 (1948) by relying on unreliable and false information contained in
the Pre-Sentence Report when it calculated his offense level. These arguments could not

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be considered by the District Court because they are beyond the scope of § 3582(c)(2).
See United States v. McBride, 283 F.3d 612, 614-15 (3d Cir. 2002). Such a challenge to
the validity of a federal conviction or sentence must be brought in a 28 U.S.C. § 2255
motion. See Davis v. United States, 417 U.S. 333, 343 (1974).
IV.
For the foregoing reasons, we conclude that the appeal presents no substantial
question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d
Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
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