NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       _____________

                        No. 19-1134



                  United States of America,

                              v.

James M. Harris, III, a/k/a James Smalls, a/k/a James Gunplay,

                                              Appellant


        _____________________________________

   On Appeal from the United States District Court for the
                   District of New Jersey
         (District Court No.: 1-11-cr-00783-004)
        District Judge: Honorable Renée M. Bumb
       _____________________________________



        Submitted under Third Circuit L.A.R. 34.1(a)
                     on July 2, 2019


              (Opinion filed October 25, 2019)


 Before: McKEE, PORTER and RENDELL, Circuit Judges
                                      O P I N I O N*



RENDELL, Circuit Judge:

       Appellant James Harris, III urges that the District Court abused its discretion when

it resentenced him to the top of his new Guidelines range after previously sentencing him

toward the middle of his former range. Finding no error, we will affirm the District

Court’s order.

                                             I

       In 2011, an undercover agent (“UC”) working for the Bureau of Alcohol,

Tobacco, and Firearms (“ATF”) met with suspected members of the Bloods street gang.

The UC proposed that the group rob a residence where drug dealers stored illicit

contraband, proceeds, and weapons (the “stash house”). After the group had begun

making plans to do so, Harris was brought into the conspiracy by the suspected gang

members approached by the UC. During meetings with the UC, Harris asked if there

would be lookouts, did not object to plans to murder individuals at the stash house, and

referred to the plan as “another day on the job.” Appellee Br. 4. Sometime after Harris




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                             2
was brought into the conspiracy, he is alleged to have murdered two young men in an

execution-style killing.

       The ATF eventually arrested Harris and charged him with conspiracy to commit

robbery and conspiracy to possess with intent to distribute 5 kilograms or more of

cocaine. Harris was convicted on both counts. At sentencing, the District Court calculated

a Guidelines range of 188 to 235 months and ultimately imposed a sentence of 211

months’ incarceration.

       After Harris’ sentence was imposed, Amendment 782 to the United States

Sentencing Guidelines became effective. The amendment retroactively reduced the

offense levels assigned to most drug quantities under U.S.S.G. § 2D1 by two. In response

to Amendment 782’s implementation, Harris filed for a sentence reduction pursuant to 18

U.S.C. § 3582(c)(2). Harris submitted that his new Guidelines range was 151 to 188

months’ imprisonment and argued that he was entitled to a lower sentence of 151

months’ imprisonment. He believed that his post-sentence conduct, his lowered risk of

recidivism, and the reasons for Amendment 782 all supported this specific sentence. The

government opposed the sentence reduction, arguing that Harris was still a danger to the

public. In arguing this, the government relied, in part, on Harris’ pending double

homicide trial and pointed out that Harris was, at the time, awaiting retrial after

photographic evidence was held to have been wrongly admitted into evidence.




                                              3
       After considering both sides’ arguments, the District Court found that Harris’ new

Guidelines range was 151 to 188 months’ imprisonment and imposed a new sentence of

181 months’ imprisonment. This appeal followed.

                                               II

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 18 U.S.C.

§ 3582(c)(2). We have jurisdiction pursuant to 18 U.S.C. § 1291. We review resentencing

decisions under an abuse of discretion standard. United States v. Steyer, 

,

153 (3d Cir. 2009).

                                              III

       Harris raises claims regarding both the procedural and substantive reasonableness

of his new sentence. He urges that his sentence was procedurally unreasonable because

he contends that the District Court failed to properly consider the reasons behind

Amendment 782 and the disproportionate impact of sting operations on racial minorities,

and erred by considering his willingness to kill. He argues that his sentence was

substantively unreasonable because his new sentence was placed relatively higher in the

new range than his previous sentence was in the former range.1

       A district court follows a two-step procedure when considering motions to

resentence. The district court must (1) establish that the petitioner is statutorily eligible




1
 Harris’ eligibility for a new Guidelines range of 151 to 188 months’ imprisonment is
not disputed in this appeal.
                                               4
for a reduction under 18 U.S.C. § 3582(c)(2) and then (2) consider the 18 U.S.C.

§ 3553(a) factors and any relevant policy statements to determine the new sentence.

Dillon v. United States, 

, 826-27 (2010). At step two, the resentencing court

must adequately address both parties’ concerns and have a “reasoned basis” for the new

sentence it imposes. Chavez-Meza v. United States, 

, 1964 (2018).

       First, Harris claims that the District Court did not adequately consider the policy

rationales for Amendment 782. The policy rationales for Amendment 782 are as follows:

(1) to decrease overcrowding in federal prisons, (2) to reflect the fact that the law no

longer needs to set the Guidelines above the mandatory minimum, (3) to focus resources

on decreasing recidivism, and (4) to reflect the fact that the law now adequately

differentiates between drug crimes. See U.S. Sentencing Guidelines Manual, supp. app.

C, amend. 782. Harris argues that the District Court failed to properly consider the first

three policy rationales.

       The District Court needs to show that it considered the policy rationales for the

Amendment. See 18 U.S.C. § 3582(c)(2); 

. The Court

does not need to include a full explanation for each policy rationale, as long as the record

indicates that the Court considered each. See 

(upholding

a resentencing determination where the Judge “certified (on a form) that he had . . .

tak[en] into account the relevant Guidelines policy statements” (internal quotation marks

omitted)). Here, the District Court explicitly noted the first two policy considerations in

its resentencing order by stating that “Amendment 782 was enacted to reflect [the]


                                              5
determination that ‘setting the base levels slightly above [the] minimum is no longer

necessary’. . . as well as to address ‘the significant overcapacity . . . of Prisons.’” App.

12. In doing so, the District Court fulfilled its statutory obligation.

       The District Court also adequately considered Harris’ risk of recidivism. Harris

offers a menagerie of secondary sources to show that the law of diminishing returns

applies to the deterring effects of incarceration. Despite Harris’ eclectic array of support

for his argument, the District Court was not required to do anything more than address

and consider his risk of recidivism, which it did multiple times. See App. 16 (“[A]

sentence within the applicable Guideline range will . . . deter future criminal conduct by

Defendant and others.”); 

within the applicable Guideline range protects

the public from further crimes by the Defendant.”). The District Court did not impose a

lower sentence because it was concerned with the severity of Harris’ crimes. App. 15

(“[The crime] was and remains disturbing to the Court.”); App. 16 (“A lesser sentence

may be perceived as too lenient.”). The District Court’s extensive reasoning as to how the

defendant’s risk of recidivism factored into the sentence it imposed was more than

sufficient to fulfill its statutory obligation.

       Next, Harris argues that the District Court did not adequately address his argument

that sting operations are a form of institutionalized racism. The District Court explicitly

addressed and dismissed Harris’ concerns in its opinion:

       Defendant asks this Court to consider that reverse sting operations target
       racial and ethnic minorities. The facts of this case . . . demonstrate[] that


                                                  6
       Harris was brought into the conspiracy by members of the Bloods street
       gang with whom [he] admits he associated with at the time.

App. 15 n.1. We agree that Harris failed to show how his argument applies to the facts of

this specific case. Therefore, the District Court sufficiently addressed it.

       As a final procedural challenge, Harris argues that the District Court erred in

considering his willingness to kill during the crime. In imposing a new sentence, the

District Court stated, “[t]he Defendant’s readiness and callousness to commit such crime

which, as far as the Defendant was concerned, could have involved the killing of

individual(s) is very troubling.” App. 15. Harris argues that his willingness to kill was

already incorporated into his sentence through the two-level guideline enhancement for

his possession of a firearm during the offense. Consequently, he claims, it should not

have been considered by the District Court when it imposed a new sentence. Despite

what Harris argues, the possession of a firearm enhancement does not contemplate a

defendant’s willingness to kill during the commission of an offense. Accordingly, Harris’

argument fails.

       Lastly, Harris argues that the Court abused its discretion by placing his sentence

higher in the new Guidelines range than his previous sentence was in the old Guidelines

range. Harris claims that the only new factor the District Court considered was his

exemplary conduct since he became incarcerated. Harris therefore believes that all the

factors properly considered should have led the Court to impose a new sentence that, at

the very least, was proportional to his old sentence relative to his new range. But the

Supreme Court has explicitly held that there is no presumption that a new sentence will
                                              7
be proportionally placed in the new Guidelines range at resentencing. 

. A district court can resentence a defendant to a non-proportional sentence

within the new range and need only show it considered the proper factors when

resentencing. 

District Court amply showed it made the required

considerations. It was well within the Court’s discretion to impose the new sentence at

the top of the new Guidelines range. As a result, Harris’ final argument fails.

                                            IV

       For the aforementioned reasons, we will affirm the resentencing order of the

District Court.




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