1 17-265 United States v. Peguero-Franco (Tolentino)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 12 th day of December, tw o thousand seventeen.

PRESENT: J OSÉ A. C ABRANES , D EBRA A NN L IVINGSTON , Circuit Judges,
R ICHARD W. G OLDBERG ,  Judge.

U NITED S TATES OF A MERICA , Appellee, 17-265

v.
J UAN T OLENTINO , AKA Chamacho, AKA Ismael (F ederal Prisoner: 91942-054),

Defendant-Appellant

,

M ANUEL P EGUERO -F RANCO , AKA Manny, E DWIN L OPEZ D IAZ , AKA Doctor,

Defendants

. **

 Judge Richard W. Goldberg, of the United St ates Court of International Trade, sitting by designation.

** The clerk is ordered to amend the caption of this case as shown herein.2 FOR DEFENDANT-APPELLANT: Juan Tolentino, pro se, Philipsburg, PA.

FOR APPELLEE: Edward Diskant, Margaret Garnett, Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED

. Appellant Juan Tolentino, proceeding pro se, a ppeals from the District Court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the United States Sentencing Guidelines (“U.S.S.G.”), which lowered the base offense levels applicable to most drug crimes under U.S.S.G. § 2D1.1. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Under § 3582(c)(2), a district court may reduce a defendant’s term of imprisonment if his sentence was based on a sentencing range that the Sentencing Commission subsequently lowered. United States v. Borden , 564 F.3d 100, 103 (2d Cir. 2009). But the statute “clearly allows for a district court to exercise its discretion”; even if the defend ant is eligible for a sentence reduction, the district court may decline to reduce the sentence if it determines that a reduction is not warranted. Id. at 104; see Dillon v. United States , 560 U.S. 817, 821-22 (2010). To determine whether a reduction is warranted, the district court considers any applicable § 3553(a) factors and decides “whether, in its discretion, the reduction authorized by reference to the [applicable Sentencing Commission] policies . . . is warranted in whole or in part unde r the particular circumstances of the case.” United States v. Christie , 736 F.3d 191, 194–95 (2d Cir. 2013) (inter nal quotation marks and citation omitted). We review a district court’s discretionary denial of a § 3582(c)(2) motion for abuse of discretion. United States v. Rios , 765 F.3d 133, 137 (2d Cir. 2014) (citati on omitted). A “district court has abused its discretion if it based its ruling on an erroneous vi ew of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that ca nnot be located within the range of permissible decisions.” Borden , 564 F.3d at 104 (internal quotation marks and citation omitted).
Upon review, we conclude that the District Court did not abuse its discretion by determining, after concluding that Tolentino was el igible for a sentencing reduction, that a reduction was not warranted. The District Court reasonably re lied on the same factors it considered at the original sentencing proceeding, including the s ophistication and seriousness of the offense, the quantities of drugs trafficked, and the harm to the community, in reaching its conclusion. See 18 U.S.C. § 3553(a)(1), (2)(A); see also Borden , 564 F.3d at 104. And although a district court ruling on a § 3582 motion “ may consider post-sentencing conduct,” it is not required to do so. U.S.S.G. § 1B1.10 cmt. 1(B)(iii) (emphasis added).3 CONCLUSION
We have considered Tolentino’s remaining argu ments and find them to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk