12-3271-cr

United States v. Figueroa

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2012

(Submitted On: May 8, 2013 Decided: May 9, 2013)

Docket No. 12-3271-cr 

_______________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

BENJAMIN FIGUEROA, AKA TRINI,

Defendant-Appellant,

ISAAC ALMANZAR, AKA LUCKY; EDDIE MEDINA,

AKA PEDRO; LUIS HERNANDEZ, AKA KING RIP,

AKA DANNY HERNANDEZ, AKA LOUIS HERNANDEZ;

MIGUEL SOTO, AKA RIGHTEOUS; JOSE CRUZ; JAVIER

TAVAREZ, AKA FATBOX; ISMAEL SUREN, AKA ISH,

Defendants.1

_______________________________________________________________

Before: LEVAL, CABRANES, and B.D. PARKER, Circuit Judges.

This appeal requires us to determine whether the United States District Court for the 

Eastern District of New York (Dora L. Irizarry, Judge) erred by denying a defendant’s motion for 

resentencing pursuant to 18 U.S.C. § 3582(c) and U.S.S.G. § 1B1.10. Although the District Court 

 

1

 The Clerk of Court is directed to amend the caption of this case to conform to the listing of the parties shown above.
2

concluded that the defendant was eligible for a sentence reduction, it declined to reduce his 

sentence, finding that the defendant posed a danger to the community based on his conduct while in 

detention. After a review of the record, we conclude that the District Court acted well within its 

discretion in considering this conduct and denying a sentence reduction on that basis. 

Affirmed.

Scott L. Fenstermaker, Law Offices of Scott L.

Fenstermaker, P.C., New York, NY, for 

Benjamin Figueroa.

Robert T. Polemeni, David C. James, for Loretta E. 

Lynch, United States Attorney, United States 

Attorney’s Office for the Eastern District of 

New York, Brooklyn, NY, for the United States 

of America.

PER CURIAM:

This appeal requires us to determine whether the United States District Court for the 

Eastern District of New York (Dora L. Irizarry, Judge) erred by denying defendant-appellant 

Benjamin Figueroa’s motion for resentencing pursuant to 18 U.S.C. § 3582(c) and U.S.S.G. 

§ 1B1.10. Although the District Court concluded that Figueroa was eligible for a sentence 

reduction, it declined to reduce his sentence, finding that he posed a danger to the community based 

on his conduct while in detention. After a review of the record, we conclude that the District Court 

acted well within its discretion in considering this conduct and denying a sentence reduction on that 

basis. Accordingly, we affirm the District Court’s August 10, 2012 order.
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BACKGROUND

On November 17, 2006, pursuant to an agreement with the government, Figueroa pleaded 

guilty to conspiring to possess with the intent to distribute cocaine base (“crack cocaine”).2 The 

District Court sentenced Figueroa on February 20, 2008. See App’x 75. At the sentencing hearing, 

the government stated that, under its plea agreement with Figueroa, it had agreed to hold Figueroa 

responsible for only the amount of crack cocaine sold to undercover agents and cooperators. Id. at 

35-36. The government proffered that this amount totaled 141 grams. Id. at 36. Although the 

District Court expressed its view that the government’s estimate that Figueroa was accountable for 

between 50 and 150 grams of crack cocaine was a “grossly conservative estimate,” id. at 35, it abided 

by the parties’ agreement and calculated Figueroa’s base level offense to be 30, id. at 39. Ultimately, 

the District Court sentenced Figueroa to 150 months’ imprisonment, which was near the top of the 

Guidelines range. Id. at 47, 53-54. We affirmed Figueroa’s sentence on appeal. See United States v. 

Soto, Nos. 08-0654-cr, 08-0706-cr, 2009 WL 765015, at 3 (2d Cir. Mar. 25, 2009) (non-precedential 

summary order).

On December 22, 2011, Figueroa filed a motion seeking a sentence reduction pursuant to 18 

U.S.C. § 3582(c) and U.S.S.G. § 1B1.10. His motion was based on Amendment 750 of the 

Sentencing Guidelines, issued pursuant to the Fair Sentencing Act of 2010, Pub. L. No. 110-220, 

124 Stat. 2372 (2010), which retroactively reduced the base offense levels for crack-cocaine offenses. 

In particular, when Figueroa was sentenced in 2008, conspiring to distribute between 50 and 150 

grams of crack cocaine corresponded to a base offense level of 30; since Amendment 750 was 

enacted, conspiring to distribute between 28 and 112 grams of crack cocaine corresponds to a base 

 

2

 Although Figueroa was charged with possessing with an intent to distribute 50 grams or more of crack cocaine, he 

pleaded guilty to a lesser-included offense of conspiring to possess with an intent to distribute 5 grams or more of crack 

cocaine, in violation of 21 U.S.C. § 841(b)(1)(B). 
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offense level of 26, while conspiring to distribute between 112 and 196 grams of crack cocaine 

corresponds to a base offense level of 28. See U.S.S.G. § 2D1.1(c)(6) and (7).

The District Court denied Figueroa’s motion for a sentence reduction. Although it 

concluded that Figueroa was eligible for a sentence reduction, it found that “[s]uch a reduction would 

be inconsistent with U.S.S.G. § 1B1.10 because [Figueroa’s] post-conviction conduct indicates that 

he is still a threat to the community.” App’x 79-80. In particular, the District Court stated that the 

Third Addendum to the Pre-Sentence Report noted that Figueroa had “incurred eight disciplinary 

sanctions while incarcerated, five of which (and the most violent) occurred after he was sentenced.” 

Id. at 80. These incidents involved possessing a weapon (twice), possessing intoxicants (twice), and 

assaulting another inmate. Id. 

This appeal followed.

DISCUSSION

A.

This Court reviews a district court’s decision to modify or maintain a sentence under 18 

U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Borden, 564 F.3d 100, 101 (2d Cir. 2009); 

see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a district court abuses its discretion if 

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” 

(internal citation and quotation marks omitted)).

When presented with a motion pursuant to § 3582(c)(2),

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a district court considers whether 

the defendant is eligible for a sentence reduction by calculating the Guidelines range that would have 

 

3

 Title 18 U.S.C. § 3582(c)(2) provides:

(c) Modification of an imposed term of imprisonment.—The court may not modify a term of 

imprisonment once it has been imposed except that . . . 
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been applicable had the amended Guidelines been in place at the time the defendant originally was 

sentenced. See U.S.S.G. § 1B1.10(b)(1). If the district court determines that the defendant is eligible 

for a sentence reduction, then it may reduce the sentence “after considering the factors set forth in 

section 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(2).

B.

In this case, although the District Court determined that Figueroa was eligible for a sentence 

reduction, it declined to grant his § 3582(c)(2) motion. Figueroa contends that the District Court 

abused its discretion by: (1) denying his motion without first determining the amended Guidelines 

range; (2) failing to conduct a hearing or require further evidentiary substantiation of defendant’s 

conduct while at the Metropolitan Detention Center (“MDC”); and (3) considering Figueroa’s postconviction conduct without first determining whether resentencing would be consistent with 

U.S.S.G. § 1B1.10. All three of these arguments are without merit.

First, Figueroa’s argument that the District Court failed to determine the applicable amended 

Guidelines range is misguided because the record is clear that the District Court did determine that 

the amended range was 97 to 121 months.4 Specifically, it noted in its order that, at Figueroa’s 

original sentencing, it found him accountable for 141 grams of crack cocaine (and it viewed that 

amount as a conservative estimate). See App’x 80-81. Although the District Court did not explicitly 

state this finding at Figueroa’s original sentencing, the parties had agreed that Figueroa would be 

responsible for the amount of crack cocaine sold to undercover agents and cooperators by members 

 

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a 

sentencing range that has subsequently been lowered by the Sentencing Commission 

pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau 

of Prisons, or on its own motion, the court may reduce the term of imprisonment, after 

considering the factors set forth in section 3553(a) to the extent that they are applicable, if 

such a reduction is consistent with applicable policy statements issued by the Sentencing 

Commission.

4

 Because the District Court determined that Figueroa was responsible for 141 grams of crack cocaine at the original 

sentencing, see App’x 80, “after taking into account the relevant reductions and enhancements, the total [offense] level 

would be 28, corresponding to a [Guidelines] range of 97 to 121 months’ imprisonment, considering [Figueroa’s] 

Criminal History Category of III,” id. at 79. 
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of the conspiracy. Id. at 35-36. The government represented at the original sentencing that this 

amount was 141 grams, and Figueroa did not object. Id. at 36. The District Court also stated that it 

would “abide by the parties’ agreement as to the drug amount [Figueroa] [wa]s accountable for,” 

which necessarily referred to the government’s representation of 141 grams. Id. at 39. In these

circumstances, we fail to see how the District Court abused its discretion in this regard.

Second, Figueroa’s argument that he was entitled to a hearing on his § 3582(c)(2) motion is 

not persuasive. A court’s resolution of a motion for a sentence reduction does not necessarily 

require a full resentencing hearing. Indeed, “[a] defendant need not be present” when “[t]he 

proceeding involves the correction of a sentence under Rule 35 or 18 U.S.C. § 3582(c).” Fed. R. 

Crim. P. 43(b)(4). We also see no reason for further “evidentiary substantiation” regarding 

Figueroa’s conduct at the MDC. The Third Addendum to the Pre-Sentence Report summarized 

Figueroa’s conduct, and Figueroa did not dispute this account of his conduct before the District Court, 

despite having the opportunity to do so. 

Third, an inmate’s conduct while in prison is a relevant factor for a district court to consider

on resentencing. See U.S.S.G. § 1B1.10, App. Note 1(B)(iii) (“The court may consider postsentencing conduct of the defendant that occurred after imposition of the term of imprisonment in 

determining . . . whether a reduction in the defendant’s term of imprisonment is warranted . . . .”). 

Accordingly, the District Court acted well within its discretion in considering the fact that Figueroa

had been disciplined five times while at the MDC for possessing intoxicants on two occasions, 

possessing a weapon on two occasions, and assaulting another inmate. App’x 69-70. Consideration 

of Figueroa’s post-conviction conduct was not premature under Dillon v. United States, 130 S. Ct. 

2683 (2010), because this conduct entered into the calculation of whether Figueroa was eligible for a 

sentence reduction under U.S.S.G. § 1B1.10. See id. at 2691 (“Section 3582(c)(2) instructs a district 

court to conside[r] the factors set forth in section 3553(a) to the extent that they are applicable, but 
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it authorizes a reduction on that basis only if such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission—namely, § 1B1.10.” (internal quotation marks

omitted)).

CONCLUSION

To summarize:

(1) The District Court correctly determined Figueroa’s amended Guidelines range before it 

concluded that Figueroa did not warrant a sentence reduction due to his post-conviction 

conduct at the MDC.

(2) There was no need for the District Court to conduct a hearing or require further 

evidentiary substantiation of Figueroa’s conduct while at the MDC, especially 

considering this conduct was not disputed by Figueroa.

(3) The District Court properly considered Figueroa’s post-conviction conduct under Dillon 

v. United States, 130 S. Ct. 2683 (2010), because this conduct entered into the calculation 

of whether Figueroa was eligible for a sentence reduction under U.S.S.G. § 1B1.10.

For these reasons, we AFFIRM the District Court’s August 10, 2012 order.