Filed: May 16, 2013
Latest Update: Feb. 13, 2020
Summary: 12-2373-cr United States v. Wilson U NITED S TATES C OURT OF A PPEALS FOR THE S ECOND C IRCUIT August Term 2012 (Submitted: April 12, 2013 Decided: May 16, 2013) Docket No. 12-2373-cr _ U NITED S TATES OF A MERICA , Appellee, v. J AMES W ILSON , Defendant-Appellant. _ Before: K EARSE AND C HIN , Circuit Judges, * AND H ALL , District Judge. _ Appeal from an order of the United States District Court for the Eastern District of New York (Platt, J.) denying a motion for a sentence reduction pursuan
Summary: 12-2373-cr United States v. Wilson U NITED S TATES C OURT OF A PPEALS FOR THE S ECOND C IRCUIT August Term 2012 (Submitted: April 12, 2013 Decided: May 16, 2013) Docket No. 12-2373-cr _ U NITED S TATES OF A MERICA , Appellee, v. J AMES W ILSON , Defendant-Appellant. _ Before: K EARSE AND C HIN , Circuit Judges, * AND H ALL , District Judge. _ Appeal from an order of the United States District Court for the Eastern District of New York (Platt, J.) denying a motion for a sentence reduction pursuant..
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12-2373-cr
United States v. Wilson
U NITED S TATES C OURT OF A PPEALS
FOR THE S ECOND C IRCUIT
August Term 2012
(Submitted: April 12, 2013 Decided: May 16, 2013)
Docket No. 12-2373-cr
____________________
U NITED S TATES OF A MERICA ,
Appellee,
v.
J AMES W ILSON ,
Defendant-Appellant.
____________________
Before:
K EARSE AND C HIN , Circuit Judges,
*
AND H ALL , District Judge.
____________________
Appeal from an order of the United States District
Court for the Eastern District of New York (Platt, J.)
denying a motion for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2) and Amendment 750 to the U.S.
Sentencing Guidelines Manual.
A FFIRMED .
*
The Honorable Janet C. Hall, of the United States
District Court for the District of Connecticut, sitting by
designation.
____________________
John J. Durham, Susan Corkery,
Assistant United States
Attorneys, for Loretta E.
Lynch, United States
Attorney for the Eastern
District of New York,
Brooklyn, New York, for
Appellee.
Kenneth Scott Williamson,
Freedom Foundation, PLLC,
Goodlettsville, Tennessee,
for Defendant-Appellant.
____________________
P ER C URIAM :
Defendant-Appellant James Wilson appeals from the
district court's May 18, 2012 memorandum and order denying
his motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 750 to the U.S. Sentencing
Guidelines (the "Guidelines"), which lowered the base
offense levels for crack cocaine offenses. We hold that
the district court did not abuse its discretion by denying
Wilson's motion to reduce his sentence to within the
amended Guidelines range. Accordingly, we affirm.
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BACKGROUND
Wilson was convicted, following a plea of guilty,
of one count of distributing 114.64 grams of crack and 160
grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(B)(iii). At Wilson's sentencing on November
22, 2005, the district court calculated his Guidelines
range as 188 to 235 months and sentenced him to 200 months'
imprisonment.
In March 2008, the district court issued an order
to show cause why it should not, sua sponte, reduce
Wilson's sentence pursuant to 18 U.S.C. § 3582(c)(2) and
Amendment 706 to the Guidelines, which lowered the base
offense levels for crack offenses, effective retroactively.
See U.S.S.G. app. C, amend. 706 (2012) (effective Nov. 1,
2007); see also id. app. C, amend. 713 (effective Mar. 3,
2008);
id. § 1B1.10(c). Under the 2008 amended Guidelines,
Wilson's Guidelines range was 151 to 188 months. On
September 30, 2008, the district court reduced Wilson's
sentence to 168 months' imprisonment.
On October 21, 2011, Wilson filed a motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and
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Amendment 750 to the Guidelines, which further lowered the
base offense levels for crack offenses, effective
retroactively. See U.S.S.G. app. C, amend. 750 (2012)
(effective Nov. 1, 2011); see also id. app. C, amend. 759
(effective Nov. 1, 2011);
id. § 1B1.10(c) & cmt. n.4. In a
written memorandum and order dated May 18, 2012, the
district court calculated Wilson's 2011 amended Guidelines
range as 130 to 162 months' imprisonment, but declined to
reduce Wilson's sentence below 168 months' imprisonment.
This appeal followed.
DISCUSSION
We review for abuse of discretion a district
court's denial of a motion to reduce a sentence pursuant to
18 U.S.C. § 3582(c)(2). United States v. Borden, 564 F.3d
100, 104 (2d Cir. 2009). An abuse of discretion occurs
where a district court "'base[s] its ruling on an erroneous
view of the law or on a clearly erroneous assessment of the
evidence, or render[s] a decision that cannot be located
within the range of permissible decisions.'"
Id.
(quoting Sims v. Blot,
534 F.3d 117, 132 (2d Cir. 2008)).
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Pursuant to 18 U.S.C. § 3582(c)(2), a district
court may reduce a defendant's sentence "based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2). When
presented with a motion to reduce a sentence pursuant to
§ 3582(c)(2), a district court first must consider whether
the defendant is eligible for a reduction by calculating
the Guidelines range that would have been applicable had
the amended Guidelines been in place at the time the
defendant originally was sentenced. See Dillon v. United
States, 130 S. Ct. 2683, 2691 (2010) (citing U.S.S.G.
§ 1B1.10(b)(1)). If the defendant is eligible for a
sentence reduction, the district court "may" reduce the
sentence "after considering the factors set forth in
[§] 3553(a) to the extent that they are applicable, if such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission." 18 U.S.C.
§ 3582(c)(2); see also
Dillon, 130 S. Ct. at 2691.
A retroactive amendment to the Guidelines "merely
authorizes a reduction in sentence; it does not require
one." United States v. Rivera, 662 F.3d 166, 170 (2d Cir.
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2011). In determining whether a reduction is warranted and
the extent of any such reduction, the court may also
consider the "post-sentencing conduct of the defendant that
occurred after imposition of the original term of
imprisonment." U.S.S.G. § 1B1.10, cmt. n.1(B)(iii); see
also Rivera, 662 F.3d at 170 ("In determining whether to
modify a sentence, a judge must consider not only the
traditional sentencing factors set forth in 18 U.S.C.
§ 3553(a), but also the post-sentencing behavior of the
defendant and any public safety concerns a reduction in
sentence would raise.").
On appeal, Wilson asserts that the district court
abused its discretion by denying his motion to reduce his
sentence based on evidence that he was disciplined in
prison four times between March 2006 and March 2007.
First, Wilson contends that "Application Note
1(B)(iii) to § 1B1.10 of the U.S.S.G. prohibits the
consideration of conduct that occurred prior to a
defendant's sentencing or re-sentencing, since that conduct
has already been taken into account in determining the
prior sentence." Appellant Br. at 8 (emphasis added).
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Wilson's reliance on that provision is misplaced, how ever,
because a reduction in sentence pursuant to 18 U.S.C.
§ 3582(c) is not a resentencing. See Dillon, 130 S. Ct. at
2690-92. "By its terms, § 3582(c)(2) does not authorize a
sentencing or resentencing proceeding. Instead, it
provides for the 'modif[ication of] a term of imprisonment'
by giving courts the power to 'reduce' an otherwise final
sentence in circumstances specified by the
Commission. . . . Section 3582(c)(2)'s text, together with
its narrow scope, shows that Congress intended to authorize
only a limited adjustment to an otherwise final sentence
and not a plenary resentencing proceeding."
Id. at 2690-
91; see
id. at 2694 ("§ 3582(c)(2) does not authorize a
resentencing").
Second, Wilson argues that it was "contradictory"
for the district court not to resentence him within the
amended Guidelines range when it did so in 2008, when the
district court was already aware of his misconduct in
prison in 2006 and 2007 and there had been no additional
misconduct in the intervening time. We disagree. In
deciding Wilson's motion, the district court properly
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considered the amended Guidelines range, as well as the
statutory factors set forth in 18 U.S.C. § 3553(a). In
addition, the district court was permitted to -- and did --
consider Wilson's post-sentencing conduct, including the
disciplinary infractions he committed in prison in 2006 and
2007. See U.S.S.G. § 1B1.10, cmt. n.1(B)(iii). After
considering the relevant factors, the district court
explained that the previously-imposed sentence of 168
months was "necessary to protect the public and to deter
further criminal behavior."
The district court did not abuse its discretion by
denying Wilson's motion to reduce his sentence to within
the amended Guidelines range. Rather, the district court
certainly had the discretion to conclude that a sent ence of
168 months was as low as the circumstances warranted, even
in light of the lower Guidelines range.
CONCLUSION
For the foregoing reasons, we AFFIRM the order of
the district court.
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