1 16-3909(L) United States v. Diaz 

### 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 17 th day of November, two thousand seventeen.
Present: P IERRE N. L EVAL , D EBRA A NN L IVINGSTON , D ENNY C HIN , Circuit Judges ,

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 16-3909(L), 16-3961(con) Aaron B. Pike, Diane Guadalupe Retamoza, Marina Retamoza, Jason Pike, Richard E. Pearson, Jr., Gregory R. Pattison, Christopheer A. Lobe, Benjamin J. Osman, Matthew J. Harrison, Richard C. Alicea, Sr., Jose Melend ez, Rafael Montanez, Jr., Jerad M. Davis, Defendants , D ANIEL D IAZ , Defendant-Appellant

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_____________________________________2 For Defendant-Appellant: Jayme L. Feldman, Federal Public Defender’s Office, Western District of New York, Buffalo, NY. For Appellee: James P. Kennedy, Jr., Acting United States Attorney, Mary C. Baumgarten, Assistant United States Attorney, United States Attorney’s Office, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New York (Arcara, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. On January 17, 2006, Defendant-Appellant Da niel Diaz (“Diaz”) pleaded guilty to one count of engaging in a continuing criminal ente rprise, in violation of 21 U.S.C § 848(a) (“the CCE count”), and one count of possession of a firear m in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c )(1) and (2) (“the firearm possession count”). At the time of the plea, Diaz’s sentencing range fo r the CCE count was 360 months to life, to be followed by an additional mandatory consecutive term of 60 months for the firearm possession count. The district court subsequently sentenced Diaz to 360 months for the CCE count, which, combined with the consecutive 60 months for the firearm po ssession count, led to an aggregate sentence of 420 months. On November 1, 2014, the United Stat es Sentencing Commission’s amendments to United States Sentencing Guide line (“USSG”) § 2D1.1(c) became effective. Both Diaz and the government agree that the amendment lowered Diaz’s Sentencing Guidelines range on the CCE count to 324 to 405 months. Di az subsequently filed a motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his 360-month sentence on the CCE c ount. On November 4, 2016, the district court3 denied Diaz’s motion. Diaz timely appealed. We assume the parties’ familiarity with the underlying facts, procedural hi story, and issues on appeal. As all parties agree that Diaz is eligible fo r a sentence reduction, “we review [the] district court’s decision to deny [Diaz’s] motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion.” United States v. Christie , 736 F.3d 191, 195 (2d Cir. 2013) (quoting United States v. Borden , 564 F.3d 100, 104 (2d Cir. 2009)). Under this standard, we may vacate the distri ct court’s decision only if the court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that can not be located within th e range of permissible decisions.” Borden , 564 F.3d at 104 (quoting Sims v. Blot , 534 F.3d 117, 132 (2d Cir. 2008)). Diaz puts forward three arguments for why the di strict court abused it s discretion, none of which we find persuasive. First, Diaz argues that the district co urt failed to give an adequate explanation for why Diaz deserved a sentence at the low end of the original Guidelines, but not the low end of the amended Guidelines. We disa gree. Consistent with its obligations under § 3582(c)(2), the district court pr operly considered Diaz’s 360-m onth sentence in light of the sentencing factors outlined in § 3553(a), as well as Diaz’s post-sentencing behavior and the danger to public safety that he posed. See U.S.S.G. § 1B1.10 cmt. n.1(B); United States v. Rivera , 662 F.3d 166, 170 (2d Cir. 2011); see also United States v. Verkhoglyad , 516 F.3d 122, 129 (2d Cir. 2008) (“[I]n the absence of record evidence sugg esting otherwise, we presume that a sentencing judge has faithfully discharged her duty to cons ider the statutory fact ors.” (internal quotation marks omitted) (quoting United States v. Fernandez , 443 F.3d 19, 30 (2d Cir. 2006))). The district court found that reducing Diaz’s sentence would “s everely minimize the seriousness of [Diaz’s] offense,” since Diaz helped run an organization th at transported a large qua ntity of illegal drugs into the United States, and his criminal activity “resulted in the brutal murder of two people.”4 A144–A145 (internal quotation marks omitted). The di strict court also found that reducing Diaz’s sentence would fail to deter him from returning to criminal activity after his release, noting that Diaz had initiated the drug conspiracy in question after absconding from a New York State Department of Corrections temporary release pr ogram. Finally, the court explained that Diaz’s post-sentencing conduct was “far from exemplar y,” A146, and involved po ssessing a dangerous weapon, attempting to introduce drugs into prison, and refusing to obey orders. The district court thus provided far more than the “minimal statem ent of reasons” necessary for our review of its decision, Christie , 736 F.3d at 197, and we cannot second guess the district court’ s weighing of the relevant sentencing factors, see United States v. Romano , 794 F.3d 317, 339 (2d Cir. 2015). Second, Diaz argues that the district court abused its discretion by considering Diaz’s misconduct while in prison, even though Diaz had al ready been punished for these infractions. But the district court could certainly take this conduct into account in deciding Diaz’s § 3582(c)(2) motion. See United States v. Figueroa , 714 F.3d 757, 761 (2d Cir. 2013) (per curiam). In particular, the district court found that Diaz’s pr ison conduct reflected the danger that Diaz posed to public safety, the likelihood that Diaz would return to criminal activity upon his re lease, and the need to impose a harsh sentence for deterrence purposes. The court did not err in considering Diaz’s prison conduct in li ght of these factors. See 18 U.S.C. § 3553(a)(2)(A), (B), (C); Rivera , 662 F.3d at 170. Finally, Diaz argues that the district co urt failed to consider meaningfully the reasonableness of Diaz’s 360-mont h sentence in light of his aggr egate sentence of 420 months, even though it had discretion to do so under Dean v. United States , 137 S. Ct. 1170, 1176–77 (2017). We have previously held that, when a defendant will be serving a mandatory consecutive sentence under § 924(c), a court cannot take th at sentence into account when calculating the5 amount of time to be served for a predicate offense. See United States v. Chavez , 549 F.3d 119, 135 (2d Cir. 2008). We have not yet determined how Dean impacted our decision in Chavez , and we need not do so here. In Diaz’s case, the dist rict court expressly note d that, even assuming arguendo that it could consider Diaz’s § 924(c) senten ce in determining the reasonableness of his § 848(a) sentence, it would ha ve still found that an “aggreg ate sentence of 420 months’ imprisonment is sufficient, but not greater than necessary, to comply with” the factors outlined in § 3553(a). A147. Thus, even if Dean did overrule our decision in Chavez , the district court made clear that it would have denied Diaz’s § 3582(c)(2) motion regardless. Cf. Dean , 137 S. Ct. at 1175 (noting that the district court judge would ha ve likely given the petitioner a reduced sentence if § 924(c) did not bar him from doing so).
* * * We have considered Diaz’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk