15-3413-cr 

United States v. Gilliard 

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 ORDER”).    A PARTY CITING TO A SUMMARY ORDER

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY

COUNSEL.   

1 At a stated term of the United States Court of Appeals for the Second

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 18 3 th day of November, two thousand

4 sixteen.

5 

6 PRESENT: AMALYA L. KEARSE,

7     RAYMOND J. LOHIER, JR.,

8     CHRISTOPHER F. DRONEY,

9     Circuit Judges.

10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

11 UNITED STATES OF AMERICA,

12 

13 Appellee,

14 

15 v.    No. 15‐3413‐cr

16 

17 TROY GILLIARD, AKA T ROY,     

18      

19      Defendant‐Appellant.   

20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

21 

22 FOR APPELLANT:     Darrell B. Fields, Federal Defenders

23 of New York, Inc., New York, NY.   

24    
2 

1 FOR APPELLEE:     Niketh V. Velamoor, Anna M.

2 Skotko, Assistant United States

3 Attorneys, for Preet Bharara, United

4 States Attorney for the Southern

5 District of New York,   

6 New York, NY.   

7 

8 Appeal from an order of the United States District Court for the Southern

9 District of New York (Richard J. Sullivan, Judge).

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

11 ADJUDGED, AND DECREED that the order of the District Court is

12 AFFIRMED.

13 Defendant‐appellant Troy Gilliard appeals from an October 20, 2015 order

14 of the United States District Court for the Southern District of New York

15 (Sullivan, J.) denying his motion for reduction of sentence pursuant to 18 U.S.C.   

16 § 3582(c)(2).    We assume the parties’ familiarity with the facts and record of the

17 prior proceedings, to which we refer only as necessary to explain our decision to

18 affirm.

19 In resolving a motion to reduce a sentence pursuant to 18 U.S.C.   

20 § 3582(c)(2), a district court must first determine whether the defendant is eligible

21 for a reduction in sentence.    If the defendant is eligible, the district court

22 considers any applicable § 3553(a) factors and determines, in its discretion,
3 

1 whether a reduction is warranted under the particular circumstances of the case.   

2 Dillon v. United States, 560 U.S. 817, 827 (2010).    When, as here, the defendant’s

3 eligibility is not disputed, we review a district court’s denial of a motion to

4 reduce a sentence for abuse of discretion.    United States v. Borden, 564 F.3d 100,

5 101, 104 (2d Cir. 2009).   

6 Gilliard first argues that the District Court abused its discretion when it

7 relied on the same rationale to both compute the original sentence and deny the

8 subsequent motion to reduce that sentence.    Gilliard claims that in doing so, the

9 District Court ignored (1) an amendment to the Sentencing Guidelines that

10 lowered the penalty for Gilliard’s offense, (2) Gilliard’s post‐sentencing conduct,

11 and (3) a detailed re‐entry plan.    We disagree.    The District Court stated that its

12 original above‐Guidelines sentence reflected the need for specific deterrence and

13 public safety, given Gilliard’s extensive history of criminal activity and

14 recidivism.    We affirmed that sentence as reasonable in United States v. Gilliard,

15 671 F.3d 255 (2d Cir. 2012).    In denying the motion to reduce the sentence, the

16 District Court explicitly referenced the new circumstances on which Gilliard

17 relies, but determined that deterrence and public safety still outweighed the

18 other § 3553(a) factors and necessitated the same above‐Guidelines sentence.   
4 

1 The District Court was not required to articulate a new rationale if the primary

2 reasons for its original decision persisted.    See Borden, 564 F.3d at 104–05.    The

3 District Court therefore adequately considered the applicable § 3553(a) factors in

4 deciding Gilliard’s motion.    See Dillon, 560 U.S. at 827.

5 Gilliard also relies on Peugh v. United States, which reminded us only that

6 the Sentencing Guidelines should be “the starting point and the initial

7 benchmark” for sentencing.    133 S. Ct. 2072, 2080 (2013) (quotation marks

8 omitted).    Neither Peugh nor any other case required the District Court to

9 “anchor[]” its sentence mechanically to the Guidelines range as Gilliard

10 proposes.    Appellant Br. 35.

11 Gilliard next argues that his sentence was substantively unreasonable.   

12 Again, we disagree.    The District Court acted well within its discretion in

13 concluding that Gilliard’s post‐sentencing conduct and re‐entry plan did not

14 alleviate its concerns about recidivism and public safety.    See United States v.

15 Thavaraja, 740 F.3d 253, 259 (2d Cir. 2014) (“We will set aside sentences as

16 substantively unreasonable only in ‘exceptional cases where the trial court’s

17 decision cannot be located within the range of permissible decisions.’” (quoting

18 United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc))).   
5 

1 Furthermore, the amended Guidelines notwithstanding, Gilliard’s eight‐year

2 sentence is well below the maximum possible sentence of twenty years.    21

3 U.S.C. § 841(b)(1)(C).    The sentence was therefore substantively reasonable.

4 We have considered Gilliard’s other arguments and conclude that they are

5 without merit.    For the foregoing reasons, the order of the District Court is

6 AFFIRMED.

7     FOR THE COURT:

8     Catherine O’Hagan Wolfe, Clerk of Court

9