1 19

- 3 437

- cr United States v. Moore 

### 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 OR DER”). 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 Squa re, in the City of New York, on the 9 th day of July , two thousand twenty
- one . Present: AMALYA L. KEARSE , SUSAN L. CARNEY , Circuit Judge s . *

_____________________________________ U NITED STATES OF AMERICA , Appellee ,

v. No. 19

- 3437

- cr CHRISTOPHER MOORE, Defendant

- Appellant , DANIEL GLADDEN, AKA RAZ, AKA RAZ GLADDEN, AKA NOODLES, AKA NOODLES GLADDEN, Defendant

.

* The late Circuit Judge Robert A. Katzmann , formerly a member of the panel, died before this summary order was filed

. Under 2d Cir. IOP E(b), t his appeal is being decided by the remaining members of the panel, who are in agreement.2 For Appellee: David C. Pitluck , Assistant United States Attorney ( Samuel P. Nitze , Assistant United States Attorney, on the brief ), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY

. For Defendant

- Appellant : Edward S. Zas, Assistant Federal Public Defender, Federal Defenders of New York, Inc., New York, NY

. Appeal from a n order of the United States District Court for the Eastern District of New York ( Garaufis , J. ).
UPON DUE CONSIDERATION , IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the d istrict c ourt is AFFIRMED

. On March 1, 2021, we issued a summary order vacating the district court ’s sentencing order
dated October 17, 2019 . We remand ed the case to allow the district court to address an ambiguity in the sentencing transcript and to clarify its intentions regarding the aggregate length of the prison
term that it was imposing on Defendant

- A ppellant Christopher Moore for his several crimes of
convict ion. United States v. Moore , 845 F. App ’ x 51 , 53

- 54 (2d Cir. 2021)

. In an order dated April 16, 2021, t he district court confirm ed that it did not earlier overlook the applicability of Moore’s separate 60

- month sentence when it selected a drug

- offense sentence
for Moore. United States v. Moore , No. 92

- CR

- 200

- NGG, Dkt. 538 at 3 ( S.D.N.Y. April 16, 2021). As stated in its 2021 order, the district court then “reenter[ed] the terms of the 2019 Orde r, allowing Mr. Moore’s sentence to stand at 324 months’ imprisonment for the drug offense, to be followed by 60 months’ imprisonment for the firearms offense.” Id.
Our March 1 , 2021 order provided that either Moore or the government could restore our juri sdiction following the district court’s entry of a clarifying order. Moore , 845 F. App ’ x at 5 43 (citing United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994 )). Moore made such a request

. The appeal has therefore been reinstated. On appeal, Moore again argues that the district court erred in denying his motion for reconsideration of a partial reduction of his sentence under 18 U.S.C. § 3582(c), urging that his
324

- month drug

- offense sentence i s substantively unreasonable . He also r enews his appeal of the denial of his motion for sentence reduction under § 404(b) of the First Step Act of 2018, Pub. L.
No. 115

- 391, 132 Stat. 5194 (the “First Step Act”)

. We assume the parties’ familiarity with the remaining underlying facts and procedu ral history in this case and refer to them only as needed to explain our order affirm ing the d istrict c ourt’s denial of these motions

. Beginning with Moore’s motion under 18 U.S.C. § 3582(c)(2), we review for abuse of
discretion the district court’s decis ion to deny Moore’s full requested sentencing reduction.
See 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. 1 Moore arg ues that the district court erred by placing inappropriate weight on certain facts
in its 18 U.S.C. § 3553(a) analysis. In Moore’s view, the district court placed more weight on the serious and violent nature of his 1993 offense conduct than that factor ma y bear , because the crimes occurred nearly 30 years ago. Moore also posits that the district court placed too little weight on
the evidence of his rehabilitation since his conviction. He points to his ongoing contact with his

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.4 family, his authorship of an e ducational guidebook for young people , and his improving disciplinary record. On review for abuse of discretion , we find this argument unpersuasive. Our court will only rarely disturb the district court’s weighing of various aggravating and mitigating fa ctors in imposing a sentence : “Generally, if the ultimate sentence is reasonable and the sentencing judge did not commit procedural error in imposing that sentence, we will not second guess the weight (or lack thereof) that the judge accorded to a given fa ctor or to a specific argument made pursuant
to that factor. ” United States v. Pope , 554 F.3d 240 , 246

– 47 (2d Cir. 2009). Here, the district court’s decision demonstrate s that it carefully considered the facts highlighted by Moore and arrived at a reasoned conclusion that a sentence of 324 months on the drug conspiracy count is appropriate under § 3553(a). Moore neither allege s procedural error in the d istrict c ourt’s consideration, n or can he demonstrate that the overall sentence imposed by the district court is
unreasonable: the 324

- month sentence on the conspiracy charge falls within the applicable U.S.
S entencing G uidelines range of 292 to 365 months, and the consecutive 60

- month sentence on the § 924(c) charge is the mandatory minimum under the statute. See 18 U.S.C. § 924(c)(1)(A)(i) , (D)(ii)

. The d istrict c ourt twice before, in written decisions, reduced Moore’s sentence, once in 2009 in light of Amendment 706 of the U.S. Sentencing Guidelines, and once in 201 5 in light of
Ame ndments 782 and 788 to the Guidelines. W e identify no abuse of its discretion in the sentence imposed or in the d istrict c ourt’s denial of Moore’s motion for reconsideration

. Moving to Moore’s First Step Act challenge, we likewise review for abuse of discretion a district court’s denial of relief to an eligible defendant. See United States v. Moore , 975 F.3d 84, 88 (2d Cir. 2020). Moore advances primarily the same arguments here as he did in the context of his § 3582(c)(2) motion, and the s e arguments are unpersuasive for the same reasons. In support of5 his position , Moore points additionally to several cases in which a defendant serving a sentence
for a crack cocaine

- related conviction received a sentencing reduction under the First Step Ac t. See, e .g. , United States v. Martinez , No. 04

- cr - 48 (JSR), 2019 WL 2433660 (S.D.N.Y. June 11, 2019). But the First Step Act does not mandate sentence reductions; rather, reductions under its
terms are committed to a district court ’s sound discretion

. See First Step Act § 404( c ), 132 Stat. at 522 2 (“Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.”); Moore , 975 F.3d at 89. Moore is not entitled to a First Step Act sentencing reduction simply bec ause certain other defendants received such relief. We have considered Moore ’s remaining arguments and find in them no basis for disturbing
the d istrict c ourt’s decision

. For the foregoing reasons, the order of the d istrict c ourt is
AFFIRMED

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