1 16-66-cr
United States v. Severino

UNITED STATES COURT OF APPEALS
FOR THE SECO ND 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 DA TABASE (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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 22 nd day of November, two thousand sixteen.

PRESENT: A MALYA L. K EARSE

, R ICHARD C. W ESLEY

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

---------------------------- ---------------------------- -------------- U NITED S TATES OF A MERICA

, Appellee

,

v. No. 16-66-cr

F EDIS P ERALTA

, AKA N ICHOLAS M ONTANEZ

, R OBERTO R ICHARDS

, A LEXIS R OSARIO

, M ANUEL R OASRIO

, A NSELMO S EVERINO

, AKA A NSELMO S EVERINO D URAN

, M ANUAL V ARGAS

, Defendants,

E DDY S EVERINO

, Defendant-Appellant.

---------------------------- ---------------------------- --------------

FOR APPELLEE: Jason A. Richman, Brian R. Blais, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.2 FOR DEFENDANT-APPELLANT: Darrell B. Fields, Federal Defenders of New York, Inc., New York, NY.

Appeal from a final order of the United St ates District Court for the Southern District of New York (Keenan, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is AFFIRMED

.

Defendant-Appellant Eddy Se verino was convicted, follow ing a guilty plea, of one count of conspiracy to distribute and posse ss with intent to distribute at least one kilogram of heroin, in viola tion of 21 U.S.C. § 846, and one count of distribution and possession with intent to distri bute at least one kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). He wa s sentenced to a term of 360 months’ imprisonment 1 and five years’ supervised release. 2 On August 3, 2015, Severino filed a
motion to reduce his sentence to 262 months ’ imprisonment—the bottom of his adjusted Guidelines range of 262 to 327 months—pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. 3 The district court granted the motion in part and denied it in part, a nd reduced Severino’s sentence to a term of 300 months. This appeal followed. We assume the parties’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal.

We review a district court’s ruling on a motion for sentence reduction for abuse of
discretion. United States v. Borden , 564 F.3d 100, 104 (2d Ci r. 2009). As we have previously explained, a district court abuses its discretion when it “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. (internal quotation marks omitted).

In deciding whether a reduction in Severi no’s sentence was warranted, the district
court noted that Severino lacked a criminal history of violent or assaultive behavior.

1 Severino’s applicable Guidelines range was 324 to 405 months’ imprisonment.

2 This Court affirmed Severino’s sentence on appeal , but held the mandate pending the Supreme Court’s
decision in United States v. Booker , 542 U.S. 956 (2004), and United States v. Fanfan , 542 U.S. 956 (2004). United States v. Severino , 114 F. App’x 428, 431 (2d Cir. 2004) (summary order). Following
Booker , this Court remanded Severino’s case for further proceedings. See United States v. Severino , 125 F. App’x 362, 362 (2d Cir. 2005) (summary order). On remand, the district court determined that it would have imposed the same sentence had the Guidelines been advisory at the time and declined to resentence
Severino. United States v. Severino , No. 1:01-cr-00302-JFK-1 (S.D.N.Y. Apr. 9, 2009), ECF No. 163.

3 Severino filed his motion pro se . The Federal Defenders of Ne w York subsequently filed a supplemental letter-motion on his behalf.3 Nonetheless, the district court cited two aggravating factors—that Severino’s offense involved the use of a weapon, and that he had been sanctioned once for violence while
incarcerated—and concluded that a “reduction to the bottom of the revised Guidelines range [was] inappropriate.” App’x at 80. On appeal, Severino argues that the district
court’s reliance on these two factors was e rroneous. He also challenges his reduced sentence as substantively unreasonable. We address each ar gument in turn.

1. Use of a Firearm

Severino contends that the district cour t erred in concluding that his offense
involved the “use” of a firear m and that, at most, the record supports a finding of mere possession. In so arguing, Severino relies primarily on Bailey v. United States , 516 U.S. 137 (1995). There, the Supreme Court held th at, for purposes of 18 U.S.C. § 924(c)(1), “use” of a firearm requires “active employmen t” and that, consequently, mere possession
cannot constitute “use” under that statute. Id. at 143.

This argument misses the mark. During Severino’s initia l sentencing proceedings, the district court found that gu ns were present in the apartm ent where the drug conspiracy operated and were clearly “tools of the heroin trade,” App’x at 46; that Severino supplied guns to his drug customers as an accommodati on, which in turn “enhanced [his] narcotics business,” id. ; and that it was foreseeable to Severi no that his customers would use guns in their own drug dealings. In light of th ose findings, the court imposed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1 ) for possession of a dangerous weapon in
connection with a narc otics conviction. That enhancem ent, and its underlying factual findings, were affirmed on appeal. See United States v. Severino , 114 F. App’x 428, 430 (2d Cir. 2004) (summary order). It is clear to us that, in stating that Severino’s original
conduct “involved the use of a weapon” when ruling on Seve rino’s motion for sentence reduction, see App’x at 80, the district court was me rely referencing those earlier factual findings. As such, we discern no error in the district court’s statement. Nor do we identify any abuse of discretion in the court’s consid eration of those findings to determine the
extent of sentence reduction warrant ed under 18 U.S.C. § 3582(c).

2. Disciplinary Infraction

Severino next argues that the district c ourt abused its discre tion in relying on a single, fourteen-year-old disciplinary sanction as the basis for not reducing his sentence
to the bottom of the amended Guidelines ra nge. In support of this argument, Severino points to the Government’s letter respondi ng to his motion for sentence reduction, in which the Government expressed its view th at the infraction, standing alone, did not counsel against the district court granting a sentence reduction. Severino also emphasizes that the altercation leading to his infraction did not result in any in juries or criminal4 charges; that the remainder of his incarcerat ion has been without incident; and that he lacks a criminal history of violent or assaultive behavior.

Although this record may have sup ported a greater reduc tion in Severino’s sentence, it is well established that the “weight to be afforded any § 3553(a) factor is a matter firmly committed to the disc retion of the sentencing judge.” United States v. Verkhoglyad , 516 F.3d 122, 131 (2d Cir. 2008); see also United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (“[W]e will not subs titute our own judgment for the district court’s on the question of wh at is sufficient to meet the § 3553(a) considerations in any particular case.”). Here, the district court considered these factors and granted Severino a sixty-m onth reduction in his sentence . We cannot say that this
was an abuse of the court’s discretion.

3. Substantive Unreasonableness

Finally, Severino challenges his reduced sentence as substantively unreasonable. Specifically, Severino points to his age, his good record and rehabilitation while incarcerated, and his lack of violent or assau ltive criminal history as evidence that he poses no danger to society and is unlikely to recidivate.

As an initial matter, we note that this Cour t has yet to squarely decide whether a district court’s ruling on a motion under 18 U.S.C. § 3582(c) is reviewable for
substantive reasonableness. See United States v. Christie , 736 F.3d 191, 195 (2d Cir. 2013) (recognizing that § 35 82(c)(2) proceeding is not subject to same procedural requirements as plenary resentencing proceeding); see id. at 195–96 (holding that at least some statement of reasons by di strict court is needed for me aningful appellate review, but not specifying whether such re view includes review for substantive reasonableness).

Assuming arguendo that such review applies, Severino’s challenge nonetheless fails. A sentence is substantively unreasonabl e when it is “shocking ly high, shockingly low, or otherwise unsupportab le as a matter of law.” United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009). Thus, we will set aside a district court’s ruling as substantively unreasonable “only in exceptiona l cases where the [district] court’s decision cannot be located within the range of permissible decisions.” Cavera , 550 F.3d at 189 (internal quotation marks omitted). Here, the district c ourt reduced Severino’s sentence to a term of 300 months’ imprisonment. That the cour t refused to reduce Severino’s sentence further does not render it substantively unre asonable. Nor is a sent ence of 300 months “shockingly high” or “unsupportable as a matte r of law” given the nature of Severino’s criminal conduct and the aggrav ating factors discussed above. See Rigas , 583 F.3d at 123. Severino’s challenge is therefore meritless.5 * * *

We have considered Severino’s remaini ng arguments and conclu de that they are
without merit. We therefore AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court