United States of America v. Luis Humberto Barbosa

CLD-314 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4543
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UNITED STATES OF AMERICA
v.
LUIS HUMBERTO BARBOSA,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2:98-cr-00383-1)
District Judge: Honorable Stewart Dalzell
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
September 17, 2009
Before: RENDELL, HARDIMAN and GREENBERG, Circuit Judges
(Opinion filed October 08, 2009)
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OPINION
_________
PER CURIAM
Luis Humberto Barbosa, a federal prisoner proceeding pro se, appeals the District
Court’s denial of his (1) 18 U.S.C. § 3582(c)(2) motion for a reduced sentence,

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The trial court did not submit to the jury the issue of which substance Barbosa1
intended to distribute. On direct appeal, we held that the trial court’s failure to do so
constituted error but that this error was harmless. United States v. Barbosa, 271 F.3d 438,
461 (3d Cir. 2001).
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(2) request for an extension of the time to reply to the Government’s opposition to that
motion, and (3) motion for the production of certain documents. For the reasons that
follow, we will summarily affirm.
I.
In July 1998, the Drug Enforcement Administration (“DEA”) arrested Barbosa for
importing 882 grams of what both the DEA and Barbosa believed to be heroin. A DEA
lab test later revealed, however, that the substance was actually a form of cocaine base – a
form different from crack. In January 1999, an Eastern District of Pennsylvania jury
convicted Barbosa of possession with intent to distribute more than 50 grams of a
controlled substance. Because Barbosa had a prior felony drug conviction, the court1
sentenced him to 20 years’ imprisonment, the mandatory minimum sentence for
possession with intent to distribute more than 50 grams of cocaine base. See 21 U.S.C.
§ 841(b)(1)(A).
On direct appeal, Barbosa argued, inter alia, that the 20-year mandatory minimum
did not apply to him because “cocaine base,” as referred to in § 841(b)(1)(A), meant only
crack, not other forms of cocaine. We rejected that argument and affirmed the District
Court’s judgment. See United States v. Barbosa, 271 F.3d 438, 461-67 (3d Cir. 2001). In

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Amendment 706 reduced by two levels the base offense levels for certain crack2
offenses. United States v. Wise, 515 F.3d 207, 219 (3d Cir. 2008). Amendment 711
modified Amendment 706 in ways not relevant to this appeal.
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December 2003, Barbosa moved to vacate his sentence pursuant to 28 U.S.C.
§ 2255. The District Court denied the motion and we declined to issue a certificate of
appealability. We subsequently denied Barbosa’s request for leave to file another § 2255
motion.
In September 2008, Barbosa moved to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and to strike “the illegal portion of his sentence.” In support of this motion,
he argued that Amendments 706 and 711 to the Sentencing Guidelines warranted a
reduction in his sentence. Moreover, he seemed to reassert his claim that the sentencing2
court had erred in sentencing him to 20 years’ imprisonment. Finally, he claimed that,
pursuant to United States v. Booker, 543 U.S. 220 (2005), “the [sentencing] court is
required to afford [him] . . . benefits and considerations which were not available at the
time of [his] original sentencing.” On the same day he filed his § 3582(c)(2) motion, he
also reiterated a request for the production of documents pursuant to Fed. R. Crim. P. 16,
a request that the court apparently had denied without prejudice in 2001. After the
Government responded to Barbosa’s § 3582(c)(2) motion – the Government did not
respond to the discovery motion – he moved for an extension of the time to file a reply.
A few days later, the District Court ruled on the pending motions. First, the court
denied the § 3582(c)(2) motion, holding that this provision did not apply to him because

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he was sentenced pursuant to a statutory mandatory minimum, not the Sentencing
Guidelines. Second, the court denied his discovery motion. In doing so, the court stated
that the proceedings were well past the trial stage and that there were not any pending
petitions or other civil proceedings to which this request related. Finally, the court
dismissed his motion for an extension of time to file a reply as moot. Barbosa now
appeals the District Court’s judgment.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s determination that a defendant is ineligible for a
sentence reduction under § 3582(c). See United States v. Sanchez, 562 F.3d 275, 277 &
n.4 (3d Cir. 2009). We review a district court’s denial of a discovery motion, as well as
matters concerning a district court’s control of its docket, for abuse of discretion. Lloyd
v. Hovensa, 369 F.3d 263, 274 (3d Cir. 2004) (discussing review of district court’s denial
of a discovery motion); see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.
1982) (discussing review of district court’s control of its docket).
The District Court did not err in denying Barbosa’s motion to reduce his sentence.
Although Barbosa argues that he is entitled to such a reduction based on amendments to
the Guidelines’ treatment of crack offenses, these amendments do not apply to him
because his case does not involve a crack offense. Even if crack were the drug at issue
here, he would still be ineligible for a sentence reduction because he was sentenced

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pursuant to a statutory mandatory minimum, not a guideline modified by the amendments
at issue. See U.S.S.G. § 1B1.10 cmt. n.1(A) (stating that a sentence reduction pursuant to
§ 3582(c)(2) is not authorized if “the amendment does not have the effect of lowering the
defendant’s applicable guideline range because of the operation of another guideline or
statutory provision (e.g., a statutory mandatory minimum term of imprisonment)”); United
States v. Doe, 564 F.3d 305, 315 (3d Cir. 2009) (holding that amendment to Guidelines
did not render defendant, who was subject to a statutory mandatory minimum sentence of
life imprisonment, eligible for a sentence reduction under § 3582(c)(2)).
Barbosa’s invocation of Booker is misplaced as well, for Booker does not give the
sentencing court an independent basis upon which to reduce his sentence. See United
States v. Mateo, 560 F.3d 152, 155 (3d Cir. 2009) (stating that “this Court has rejected the
argument that Booker provides a basis for reduction of sentence not otherwise allowable
under § 3582(c)”). Moreover, to the extent his motion sought to reiterate an attack on his
sentence, such an attack is outside the scope of a § 3582(c)(2) motion. To properly
present such a claim, Barbosa would need to request and obtain leave from this Court to
file a second or successive 28 U.S.C. § 2255 motion. Finally, because Barbosa’s motion
clearly lacked merit, the District Court did not abuse its discretion when it denied his
request for an extension of time to file a reply brief. See In re Fine Paper Antitrust Litig.,
685 F.2d at 817 (stating that this Court “will not interfere with a trial court’s control of its
docket except upon the clearest showing that the procedures have resulted in actual and

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substantial prejudice to the complaining litigant” (internal quotations and citation
omitted)).
The District Court also did not err in denying Barbosa’s Fed. R. Crim. P. 16
discovery motion. Rule 16 provides that, upon a defendant’s request, the Government
must allow him to copy or photograph documents and other materials in the
Government’s possession, so long as “(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was
obtained from or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). In this case,
Barbosa seeks the production of “certified records” from the State of Florida, the State of
New York, the former Immigration and Naturalization Services, the FBI, and the DEA
that relate to a third party. Barbosa indicates that he made this request once before, in
2001, which the trial court ultimately denied.
As a preliminary matter, it is not clear whether Barbosa ever made a second
request to the Government to inspect these materials. Even if Barbosa did renew his
request, the Government was not required to produce these documents because none of
the three above-noted conditions mandating production is present. Indeed, Barbosa’s trial
has long since ended, and no direct or collateral challenges to his conviction are pending.
That his § 3582(c)(2) motion is pending is of no consequence here, as the requested
documents do not bear on whether amendments to the Guidelines warrant a reduction in
his sentence.

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Because this appeal does not present a substantial question, we will summarily
affirm the District Court’s judgment. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
Barbosa’s motion for appointment of counsel is denied.

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