16-0433-cr United States v. Diaz


## 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 A SUMMARY ORDER @ ). 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 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12 th day of December, two thousand sixteen. PRESENT: JOHN M. WALKER, Jr., PETER W. HALL, DENNY CHIN, Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 16-0433-cr L UIS D IAZ , Defendant-Appellant , G REGORY C OLLAZO , V ICTOR A LVAREZ , J UAN D IAZ , L UIS C ORDERO , M IGUEL R AMOS , AKA “Mike,” P EDRO O QUENDO , AKA “El Grande,”A UREO G ONZALEZ , C ARMELO P ACHECO , AKA “Papa Pericho,” A LBERTO R ODRIGUEZ , R OBERT M ERCADO , M ICHAEL W ARD , AKA “Black Mike,” V ICTORIA A LVERIO , AKA V ICTORIA M ORA , AKA “Evelyn,” Defendants

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_____________________________________2 For Appellee: A NDREA S URRATT AND B RIAN B LAIS , Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York. For Defendant-Appellant: Y UANCHUNG L EE , Esq., Federal Defenders of New York, Inc. Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Luis Diaz appeals from an order of the United States District Court for the Southern District of New York (Preska, J. ), denying his motion for a sentence reduction. Diaz was originally sentenced to 360 months’ imp risonment for multiple drug related offenses and, under 18 U.S.C. § 924(c), to 60 months, to be served consecutively, for the use of a firearm in connection with a drug trafficking offens e. Although Diaz was only sentenced on one § 924(c) count for using a single firearm on one occas ion, he was in fact convicted by a jury of three separate § 924(c) violations. Following the amendment of § 2D1.1(c) of the United Stat es Sentencing Guidelines (“U.S.S.G.”) on November 1, 2014, reducing the base offense level for controlled substances, see U.S.S.G. § 2D1.1(c); U.S.S.G. Supp. App. C, Amend. 782, Diaz moved pursuant to 18 U.S.C. § 3582(c)(2) for a reduction in his sentence. Beca use the amendment to § 2D1.1(c) functioned to reduce his total offense level by two levels, he sought to be resentenced based on a reduced Guidelines range. On January 22, 2016, the district court for the Southern District of New York, denied the motion, leaving Diaz’s or iginal sentence intact. Diaz timely appealed. We assume the parties' familiarity with the underlying fact s, procedural history, and issues on appeal.3 On appeal, Diaz asserts that the district cour t abused its discretion in denying his motion for a sentence reduction. First, he claims the court erred in assessing the evidence by finding he had possessed multiple firearms on multiple occasions despite the fact he was only sentenced for using one firearm on one occasion. Second, Di az argues the court unreasonably relied on his past criminal history and failed to give appropr iate weight to his ag e. We disagree. “A federal court generally ‘may not modify a term of imprisonment once it has been imposed.’” Dillon v. United States , 560 U.S. 817, 819 (2010) (quoting 18 U.S.C. § 3582(c)). Section 3582(c)(2) provides an exception, however, “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.” 18 U.S.C. § 3582(c)(2). Under those circumstances, a district court “ may reduce the term of imprisonment, afte r considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Id. (emphasis added). In determining whether to grant a defendant ’s motion for a senten ce reduction pursuant to § 3582(c)(2), district courts employ a two-step approach. Dillon , 560 U.S. at 827. First, the court must evaluate whether the defendant is eligible for a sentence reduction. Id. In determining whether a defendant is eligible for a reduction, “the cour t shall determine the amended guideline range that would have been applicable to the defendant if the [relevant amendment] had been in effect at the time the defendant was sentenced. In making such determination, the court shall . . . leave all othe r guideline application de cisions unaffected.” U.S.S.G. § 1B1.10(b)(1). Second—if the defendant is determined eligible for a reduction—the court is required to “consider any applicable § 3553( a) factors and determine whether, in its4 discretion, the reduction authorized by reference to the policies releva nt at step one is warranted in whole or in part under the partic ular circumstances of the case.” Dillon , 560 U.S. at 827. This Court reviews de novo whether a defendant is eligib le for a sentence reduction. United States v. Main , 579 F.3d 200, 202–03 (2d Cir. 2009). We review a denial of a motion to reduce a defendant’s sentence under § 3582(c)(2) for abuse of discretion, United States v. Borden , 564 F.3d 100, 104 (2d Cir. 2009), noting here that the Government does not dispute Diaz’s eligibility for a reduction. “A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly errone ous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot , 534 F.3d 117, 132 (2d Cir. 2008) (internal citations, quotation marks, and altera tions omitted). Diaz principally challenges the district court’s assessment of the evidence. He argues specifically that “Judge Preska clearly erred in believing that Mr. Diaz was guilty of us ing multiple firearms on multiple occasions . . . simply because the judgment of conviction show ed that he was convicted of three § 924(c) counts.” Diaz contends that, because he was ultimately sentenced on only one § 924(c) count involving the use of a single firearm on one occasi on, the district court’s denial of his motion was based on an erroneous assessment of the evidence. This argument is without merit. The district court did not exceed the bounds of its discretion in concluding that Diaz presents a risk to the public based on his use of firearms in connection with his underlying drug offenses. The trial record clearly indicates that—despite being sent enced on only one § 924(c) count—Diaz was indeed convicted of three § 924 (c) counts. Moreover, the PSR demonstrates that Diaz had possessed and used multiple fire arms in connection with the drug trafficking offenses. Diaz even concedes as much in his brie f. It is inconsequent ial whether the district5 court based its decision on the judgment of convi ction or some other aspect of the record. Cf. United States v. Carr , 557 F.3d 93, 107 (2d Cir. 2009) (“In the absence of record evidence suggesting otherwise, we presume that the distri ct court has faithfully discharged its duty to consider the § 3553(a) factors.”). Similarly, the district court did not exceed the bounds of its discretion in considering Diaz’s history of assaultive behavior. Under the second pr ong of the sentence-reduction analysis, the court must consider any relevant § 3553(a) factors and determine, in its discretion, whether a reduction is warranted. This is precis ely what the court did here, as it considered Diaz’s “history and characteristics.” See 18 U.S.C. § 3553(a)(1). The district court’s ruling indicates that it considered Diaz’s criminal hist ory, as outlined in the PSR, and was specifically troubled by four instances of viol ent sexual assaults. Given the na ture of such conduct, it cannot be said that the court abused its discretion in deciding that Diaz posed a risk to public safety. See Borden , 564 F.3d at 104 (concluding distri ct court did not abuse its discretion in denying motion for sentence reduction because the court’s decisi on was based in large part on defendant’s “consistent and constant violation of the law a nd accordingly the need to protect society.”). Further, the district cour t’s conclusion is not under cut by Diaz’s “exceptionally good conduct” while incarcerated. Cf. id. (“Though it is true that the USPO’s supplemental report noted that [defendant’s] BOP casew orker had determined that he di d not pose a threat to society, the District Court was acting well within its authority in deciding that, based upon [the defendant’s] extensive criminal history,” his or iginal sentence remained appropriate). Finally, there is nothing to sugge st that the district court fa iled to consider Diaz’s age in ruling on his motion, or that such a failure would have been an abuse of discretion. Considering6 Diaz’s history of violent assaults, although they occurred some time in the past, the district court did not abuse its discretion in finding Di az posed a threat to public safety. We have considered Diaz’s remaining cont entions on appeal and determined they are without merit. For the reasons stated he rein, the district c ourt's judgment is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk