15-3779

United States v. Green

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 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 the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 1st day of December, two thousand sixteen.

PRESENT: DENNIS JACOBS,

ROSEMARY S. POOLER,

Circuit Judges.

GEOFFREY W. CRAWFORD,*

District Judge.

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UNITED STATES OF AMERICA, 

Appellee,

 -v.- 15-3779**

YULANDER GREEN,

Defendant-Appellant.

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* Judge Geoffrey W. Crawford, United States District

Court for the District of Vermont, sitting by designation.

** The Clerk of Court is respectfully directed to

amend the caption of the case to appear as above.

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FOR APPELLANT: Marianne Mariano, Federal Public

Defender’s Office for the

Western District of New York,

Buffalo, NY. 

FOR APPELLEE: Monica J. Richards, for William

J. Hochul, Jr., United States

Attorney for the Western

District of New York. 

Appeal from an order of the United States District

Court for the Western District of New York (Siragusa, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the order of the district court be

AFFIRMED. 

Defendant Yulander Green appeals from the order of the

United States District Court for the Western District of New

York (Siragusa, J.), denying his motion under 18 U.S.C. §

3582(c)(2) for a sentence reduction. We assume the parties’

familiarity with the underlying facts, the procedural

history, and the issues presented for review.

Section 3582(c)(2) provides that, “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[,] . . . the court may

reduce the term of imprisonment.” (Emphasis added). In

deciding whether to reduce the defendant’s sentence, the

court follows a “two-step inquiry.” Dillon v. United

States, 560 U.S. 817, 826 (2010). First, the district court

determines if the defendant is eligible for a sentence

reduction, which depends on whether “the reduction would be

‘“consistent with applicable policy statements issued by the

Sentencing Commission”--namely, [U.S.S.G.] § 1B1.10.’” 

United States v. Mock, 612 F.3d 133, 137 (2d Cir. 2010)

(quoting Dillon, 560 U.S. at 826). Second, if the prisoner

is eligible for a reduction, the district court “consider[s]

any applicable [18 U.S.C.] § 3553(a) factors and

determine[s] whether, in its discretion, the reduction

authorized by reference to the policies relevant at step one

is warranted in whole or in part under the particular

circumstances of the case.” Dillon, 560 U.S. at 827. 

There is no dispute that Green is eligible for a

reduction. The question is whether the district court

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properly denied Green’s motion for a reduction in sentence

at step two. We review this decision for abuse of

discretion. United States v. Borden, 564 F.3d 100, 104 (2d

Cir. 2009). “[A] district court has abused its discretion

if it based its ruling on an erroneous view of the law or on

a clearly erroneous assessment of the evidence, or rendered

a decision that cannot be located within the range of

permissible decisions.” Id. (quoting Sims v. Blot, 534 F.3d

117, 132 (2d Cir. 2008)). 

Here, after considering the § 3553(a) factors and the

relevant policy statement from the Sentencing Commission,

the district court determined that a reduction would be

inappropriate because of “the nature of the defendant’s

history and characteristics,” “the need for the sentence to

reflect the seriousness of the offense,” and the fact that

“the defendant has proven to be a danger to the community.” 

J. App’x at 197. In support of this conclusion, the court

stated that Green had been a leader of a violent street

gang, that he had possessed weapons while engaging in drug

distribution, and that while on pre-sentence release in the

instant case, Green had illegally procured a weapon and used

it.

1. Green argues that the district court’s reliance on

conduct that occurred prior to his original sentencing was

error because that misconduct was already considered in the

original sentence, and is now treated less severely by the

sentencing guidelines. 

However, at step two of the analysis required under §

3582(c)(2), the district court need only consider whether

the “particular circumstances of the case” justify a

reduction of sentence in light of the § 3553(a) factors. 

Dillon, 560 U.S. at 827. Here, the district court

adequately considered these factors and found that a

reduction was unwarranted because Green was a danger to the

community and that a lower sentence would inadequately

reflect the seriousness of Green’s crime. Given the gravity

of Green’s offense and his use of a gun while on presentence release, we find no abuse of discretion in that

conclusion.

More generally, we are not persuaded by Green’s

suggestion that a sentence reduction is mandated, or

presumed, when the guidelines range for the underlying

conduct has been lowered and the defendant has avoided

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additional misconduct. In some cases, the conduct for which

the defendant was originally incarcerated may, standing

alone, justify the retention of the original sentence even

though the guidelines range has been reduced. So the

district court found here, and the statute requires nothing

more. See United States v. Wilson, 716 F.3d 50, 53 (2d Cir.

2013) (per curiam) (affirming district court’s denial of §

3582(c)(2) motion when the defendant had engaged in no

additional misconduct since the reduction of the relevant

guidelines range).

2. Green contends that the district court committed

clear error when it characterized Green as “a leader of a

violent street gang.” J. App’x at 197. The court’s

description was at most an overstatement: Green had

testified that he was a long-term member of the gang, that

he lent money to younger members of the gang, that he rented

several houses for the gang, and that he determined who

could sell drugs on those properties. Based on this

testimony, the district court’s description of Green as a

“leader” did not rise to the level of clear error. In any

event, the district court denied Green’s motion not because

he was a “leader” of the gang, but because he had “proven to

be a danger to the community” and because a lower sentence

would not “reflect the seriousness of [Green’s] offense.” 

J. App’x at 197. The district court did not abuse its

discretion in reaching these conclusions.

3. Green argues that the district court insufficiently

credited Green’s efforts toward rehabilitation in prison. 

This argument is unavailing. “The weight to be afforded any

given argument made pursuant to one of the § 3553(a) factors

is a matter firmly committed to the discretion of the

sentencing judge” and is generally beyond review. United

States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). Green

asked the district court to consider his positive postsentence conduct and, in the absence of evidence to the

contrary, we presume that the judge considered the argument. 

See id., 443 F.3d 19, 29-30 (2d Cir. 2006). 

For the foregoing reasons, and finding no merit in

Green’s other arguments, we hereby AFFIRM the order of the

district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

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