that the motion is without merit because (1) there has been no amendment to § 5G1.3(b) since Balagula's sentence, and any amendment to the commentary does not afford him the relief he seeks; (2) there has been no amendment to a guideline section which allows a reduction in the term of imprisonment under § 1B1.10(c); and (3) any modification, even if it were available, would be in the Court's discretion and the circumstances do not warrant a modification.
Upon consideration, the Court agrees with the government that Balagula's motion is without merit. First, there has been no amendment to § 5G1.3(b). Second, even if an amendment to commentary could be sufficient for a modification of sentence, the amendment to the commentary to § 5G1.3(b), Amendment 645, is not relevant to Balagula's sentence. The amended commentary deals with a downward departure under § 5G1.3(b) in "the case of a discharged term of imprisonment" to allow a downward departure where § 5G1.3(b) would have applied if the term of imprisonment had not been discharged — a circumstance not relevant here.
Third, § 3582(c)(2), under which Balagula purports to bring this motion, authorizes modification of a sentence based on a sentencing range subsequently lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). However, "[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in [USSG § 1B1.10(c)] that lowers the applicable guideline range." USSG § 1B1.10(c) cmt. n. 1; see United States v. Perez, 129 F.3d 255, 259 (2d Cir. 1997). Section 1B1.10(c) does not list Amendment 645, upon which Balagula relies. Accordingly, § 3582(c)(2) is inapplicable.
Fourth, even if modification were authorized as Balagula claims, the circumstances do not warrant the Court, in the exercise of its discretion, to modify the sentence.
Based on the foregoing, Balagula's motion is denied.
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