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United States v. Jackson

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 O RDER ” ). A PARTY CITING TO 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 1 the Thurgood Marshall United States Courthouse, 40 Foley S quare, in the City of New 2 York, on the 5 th day of April , two thousand thirteen. 3

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PRESENT: RAYMOND J. LOHIER, JR., 5

SUSAN L. CARNEY, 6 Circuit Judges, 7 JED S. RAKOFF, * 8 District Judge. 9

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11 UNITED STATES OF AMERICA, 12

13 Appellee

, 14

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v. No. 12

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JAVONNE JACKSON

, aka “VON,” aka “DUTCH,” 18

19 Defendant

- Appellant. ** 20

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### * The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

** The Clerk of Court is respectfully directed to amend the official caption to conform with

the above.2

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FOR APPELLANT: MaryBeth Covert, Federal Public Defender’s Office, 2 Western District of New York, Buffalo

, NY. 3

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FOR APPELLEE: Joseph J. Karaszewski, Assistant United States 5 Attorney

, for William J. Hochul, Jr. , United States 6 Attorney for the West ern District of New York, 7
Buffalo , NY. 8
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Appeal from a judgment of the United States District Court for the West ern District 11

of New York ( Charles J. Siragusa

, Judge ). 12

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 13

AND DECREED that the judgment of the District Court is AFFIRMED. 14

Defendant

- Appellant Javonne Jackson (“Jackson”) appeals from a May 15, 2012 15

order denying his motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) 16

and amendments to the United States Sentencing Guidelines reducing the base offense 17

levels for cr ack cocaine offenses

. See U.S .S.G. a pp. C, amend. 750 (2011). We assume 18

the parties ’ familiarity with the facts and record of the prior proceedings, to which we refer 19

only as necessary to explain our decision to affirm. 20

Section 3582(c)(2) provides that a district court, after considering the factors in 18 21

U.S.C. § 3553(a), “may” reduce a term of imprisonment based on a sentencing range that 22

has subsequently been lowered by the Sentencing Commission

, if such a reduction is 23

consistent with applicable Sentencing Commission policy statements. We review a 24

district court’ s denial of a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion. 25

United States v. Borden , 564 F.3d 100, 101 (2d Cir. 2009). “A district court has abused its 26

discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous 27

assessment of the evidence , or rendered a decision that cannot be located within the range 28

of permissible decisions.” United State s v. Carter , 696 F.3d 229, 2 32 (2d Cir. 2012 ) 29

(alteration and quotation marks omitted). 303

We reject Jackson’s argument that the 16

- to 30

- month difference between his 1

G uideline s range of 57 to 71 months’ imprisonment under the amended Sentencing 2

Guidelines a nd his sentence of 87 months ’ imprisonment suggests that the District Court 3

abused its discretion by denying him a reduction in his sentence

. Section 3582(c)(2) gives 4

a district court discretion to reduce or not to reduce a term of imprisonment when the 5

S entencing Commission has subsequently lowered the applicable range; the statute does 6

not suggest that this discretion is diminished when the Sentencing Commission lowers the 7

G uideline s range substantially

. 8

We also reject Jackson’s argument that the District Court abused its discretion by 9

denying his motion based, in part, on “the defendant’s continued disciplinary issues that 10

have occurred during his incarceration.” Jackson argues that the District Court ga ve too 11

much weight to hi s infraction for marijuan a possession while in prison . F irst, he argues 12

that because he was already punished for the incident, imposing additional punishment by 13

denying him a reduction in his sentence is excessive . S econd, Jackson notes that had he 14

been prosecuted for possessing a small amount of marijuana

, his G uideline s range would 15

have been only 6 to 12 months ’ imprisonment

. Therefore, he argues, the denial of a n even 16

longer reduction in his sentence is unwarranted. Commentary in t he Sentencing 17

Guidelines Manual provide s that a “court may consider post

- sentencing conduct of the 18

defendant that occurred after imposition of the term of imprisonment in determining . . . 19

whether a reduction in the defendant’s term of imprisonment is warranted .” U.S .S.G. § 20

1B1.10 cmt. n.1(B)(iii). The District Court was therefore entitled to consider Jackson’s 21

infraction

. Further

, the District Court did not rest its denial solely on this infraction but 22

also determined that Jackson’s original sentence was sufficient but not greater than 23

necessary to satisfy the factors listed in 18 U.S.C. § 3553(a). In sum , the District Court 24

did not abuse its discret ion by finding additional support for its denial in Jackson’s conduct 25

while in prison. 264

Jackson further argues that the District Court failed to consider that the length of his 1

original sentence was unwarranted. However, “a defendant may not seek to attrib ute error 2

to the original, otherwise

- final sentence in a motion under [§ 3582(c)(2)].” United States 3

v. Mock , 612 F.3d 133, 137 (2d Cir. 2010). We therefore reject this argument as 4

improper. 5

Finally, we reject Jackson’s argument that the District Court f ailed to consider his 6

efforts toward rehabilitation while incarcerated. Jackson presented this argument to the 7

District Court, and in the absence of evidence to the contrary, we pr esume that the 8

sentencing judge considered all arguments properly presented to h im

. See United States 9

v. Fernandez , 443 F.3d 19, 29

- 30 (2d Cir. 2006). “ The weight to be afforded any given 10

argument made pursuant to one of the § 3553(a) factors is a matter firmly committed to the 11

discretion of the sentencing judge and is beyond our review, as long as the sentence 12

ultimately imposed is reasonable in light of all the circumstances presented. ” Id. at 32. 13

We cannot conclude that Jackson’s sentence of 87 months ’ imprisonment for conspiring to 14

engage in racketeering activity involvin g between 50 and 150 grams of cocaine base is 15

unreasonable. 16

We have considered all of Jackson = s remaining arguments and conclude that they 17

are without merit. For the foregoing reasons, the judgment of the District Court is 18

AFFIRMED. 19

FOR THE COURT: 20

Catherine O = Hagan Wolfe, Clerk of Court 21

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