Filed: Apr. 26, 2016
Latest Update: Mar. 02, 2020
Summary: 15-1624 United States v. Jimenez UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDE
Summary: 15-1624 United States v. Jimenez UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER..
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15‐1624
United States v. Jimenez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 26th day of April, two thousand sixteen.
PRESENT: ROBERT D. SACK,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 15‐1624
GERALD MILLER, aka Prince, WILFREDO ARROYO,
aka C‐Justice, C.J., ROY HALE, aka Pookie, DAVID
ROBINSON, aka Bing, HARRY HUNT, FABIO
ARCINIEGAS, aka Chico, JULIO HERNANDEZ,
WAVERLY COLEMAN, aka Teddy, RONALD
TUCKER, CYNTHIA BROWN, aka Bunny, RAYMOND
ROBINSON, aka Ace,
1
Defendants,
SHANNON JIMENEZ,
Defendant‐Appellant.
_______________________________________________
FOR APPELLANT: Yuanchung Lee, Federal Defenders of New York, Inc.,
New York, NY.
FOR APPELLEE: Ameet B. Kabrawala, Assistant United States Attorney
(Peter A. Norling, Assistant United States Attorney, on
the brief), for Robert L. Capers, United States Attorney
for the Eastern District of New York, Brooklyn, NY.
Appeal from the United States District Court for the Eastern District of
New York (Dearie, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court is
AFFIRMED.
Defendant‐Appellant Shannon Jimenez (“Jimenez”) appeals from a
memorandum and order of the United States District Court for the Eastern
District of New York (Dearie, J.) denying his motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review,
which we reference only as necessary to explain our decision to affirm.
2
In 1993, Jimenez was convicted of conspiring to distribute cocaine base, in
violation of 21 §§ U.S.C. 841(a)(1), (b)(1)(A)(iii), and 846, for which he was
sentenced to 360 months’ imprisonment—the bottom of his United States
Sentencing Guideline (“U.S.S.G.” or “Guideline”) range of 360 months to life. See
United States v. Miller, 116 F.3d 641, 651‐52, 655 (2d Cir. 1997). In 2014, a
retroactive amendment to the Guidelines arguably changed Jimenez’s Guideline
range to 324 to 405 months. See U.S.S.G. Supp. to App. C, Amd. 788 (2014). On
May 13, 2015, the District Court ruled even if that Jimenez was eligible for a
reduction, a reduction was not warranted due to Jimenez’s participation in four
murders for which he had been acquitted at the time of his drug conviction as
well as his disciplinary infractions in prison. Jimenez appeals.
Section 3582(c)(2) provides that a district court may reduce an eligible
defendant’s sentence after considering the sentencing factors in § 3553(a), if a
reduction is consistent with U.S.S.G. § 1B.10. 18 U.S.C. § 3582(c)(2); see Dillon v.
United States, 560 U.S. 817, 826–27 (2010). We review a district court’s decision to
deny a sentence reduction for abuse of discretion. United States v. Johnson, 633
F.3d 116, 118 (2d Cir. 2011) (per curiam).
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Jimenez first argues that the District Court erred by failing to consider the
“parsimony clause” that prefaces the enumerated sentencing factors in § 3553(a)
and instructs a sentencing court to “impose a sentence sufficient, but not greater
than necessary, to comply with the [purposes of criminal punishment].” 18
U.S.C. § 3553(a). Jimenez failed to raise an objection under the parsimony clause
to the sentencing court. Thus, we “do not assume from the court’s failure
specifically to reference that clause that the court has ignored its mandate.”
United States v. Williams, 475 F.3d 468, 477 (2d Cir. 2007) (internal quotation
marks omitted). Rather, “absent record proof showing otherwise, we assume the
district courtʹs awareness of and compliance with this statutory sentencing
obligation.” United States v. Ministro‐Tapia, 470 F.3d 137, 141 (2d Cir. 2006).
Jimenez’s original and arguably amended Guidelines ranges include his 360
month sentence, and the District Court’s consideration of Jimenez’s pre‐
conviction and post‐sentencing conduct indicate nothing to us other than a
carefully reasoned conclusion that Jimenez’s original sentence was “sufficient,
but not greater than necessary.” See Williams, 475 F.3d at 477; Ministro‐Tapia, 470
F.3d at 141. Indeed, the court’s statement that a lower sentence is “foreclose[d]”
by Jimenez’s participation in the murders (discussed further below) indicates its
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conclusion that the original sentence was the minimum necessary in light of the
seriousness of Jimenez’s criminal conduct. We find no indication that the District
Court failed to consider the requirements of the parsimony clause in § 3553(a).
Jimenez next argues that the District Court erred in its consideration of his
“participation in the brutal murder of the four Columbian cocaine suppliers” by
concluding that this “foreclose[d] any possibility of reducing his sentence.”
App’x 119. We reject this argument. To the extent that “foreclose” implies a
legal conclusion, we do not infer from such statements that the District Court
misunderstood the law, but rather infer that the court concluded “that the facts
of the case at hand do not provide any basis for” granting a reduction. See United
States v. Brown, 98 F.3d 690, 693 (2d Cir. 1996) (emphasis removed). In light of
the District Court’s accurate recitation of the law, acknowledgment of Jimenez’s
eligibility for a reduction, and additional discussion of policy statement factors
after it asserted any reduction was “foreclose[d],” we see no reason to depart
from this inference. See Williams, 475 F.3d at 477; United States v. Fernandez, 443
F.3d 19, 33 (2d Cir. 2006) abrogated on other grounds by Rita v. United States, 551
U.S. 338 (2007).
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Finally, Jimenez argues the District Court erroneously assessed the
evidence of his post‐sentencing conduct by concluding that Jimenez’s conduct in
prison “weigh[s] against any reduction” in his sentence, App’x 119, despite the
fact that “the majority of the misbehavior occurred more than 20 years ago,”
Appellant’s Br. 34. We also reject this argument. Jimenez’s post‐sentencing
conduct was a relevant factor for the District Court to consider. See United States
v. Wilson, 716 F.3d 50, 53 (2d Cir. 2013). Moreover, the District Court did not rely
exclusively on this conduct in denying the motion, but only noted that it was a
factor in its decision. While some evidence certainly cut in Jimenez’s favor—
most notably, the vast improvement in his prison behavior over the last 20 years
and the absence of any significant sanctions since 2010—the District Court’s
assessment of this evidence does not leave us with a “definite and firm
conviction that a mistake has been committed” and was not “clearly erroneous.”
United States v. Park, 758 F.3d 193, 200–01 (2d Cir. 2014); see Wilson, 716 F.3d at
52–53.
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We have considered Jimenez’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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