          United States Court of Appeals
                       For the First Circuit
 
 

No. 15-1449

                      UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                        EMMANUEL ZAYAS-ORTIZ,

                        Defendant, Appellant.
 

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

              [Hon. José A. Fusté, U.S. District Judge]
 

                               Before

                        Howard, Chief Judge,
                 Stahl and Kayatta, Circuit Judges.
                                   

     Patricia A. Garrity, Research and Writing Specialist, Eric
A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres,
Supervisory Assistant Federal Public Defender, on brief for
appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, Susan Z. Jorgensen, Assistant United States
Attorney, and Rosa Emilia Rodriguez-Velez, United States
Attorney, on brief for appellee.

                                   

                          December 11, 2015
                                   
             STAHL, Circuit Judge.           Following an amendment to the

United     States     Sentencing           Guidelines,        Defendant-Appellant

Emmanuel   Zayas-Ortiz      filed      a    motion     for    sentence       reduction

pursuant to 18 U.S.C. § 3582(c).                The motion was opposed by the

United States and the probation officer.                      The district court

denied the motion with a short form order.                     The defendant now

appeals.   We affirm.

                           I.    Facts & Background

             On December 12, 2005, Emmanuel Zayas-Ortiz ("Zayas")

was charged, along with sixty-five co-defendants, with knowingly

and   intentionally       conspiring,       combining,        confederating,        and

agreeing   to    possess,       with    intent    to    distribute,         controlled

narcotics;    specifically,       five     kilograms     or    more    of    cocaine,

fifty grams or more of cocaine base, and one kilogram or more of

heroin.    Zayas eventually entered into a plea agreement with the

United States, which stipulated, inter alia, that Zayas was one

of the drug trafficking operation's leaders, that Zayas was an

"enforcer" and owned "drug points" where the illicit products

were sold, and that Zayas possessed a firearm in the course of

the offense.

             Consistent      with        this     agreement,          the      parties

recommended     the   following        sentencing      calculations         under   the

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United States Sentencing Guidelines Manual ("U.S.S.G." or "the

guidelines"):             Zayas   would       receive      a    base    offense         level   of

thirty-eight         for     violations         of      18      U.S.C.     §§       841(a)(1),

841(b)(1)(A),        and     846.       Pursuant      to       U.S.S.G.    § 3B1.1,          Zayas

would receive a two-level enhancement for his leadership role in

the   conspiracy,          and,   pursuant      to    U.S.S.G.         § 2D1.1,         he   would

receive another two-level enhancement for the use of firearms

within    the       conspiracy.         These       increases      would       be       partially

offset        by     a     three-level         reduction          for     acceptance            of

responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a

total    adjusted         offense   level      of    thirty-nine         and    yielding        an

imprisonment range of 262 to 327 months.                         The parties agreed to

recommend a term of imprisonment of 264 months.                                The probation

officer prepared a Pre-Sentence Report ("PSR") with calculations

mirroring those found in the plea agreement.

               On    January      17,   2007,       the      district     court         sentenced

Zayas    at    the       bottom   of    the    guidelines         range    to       a    term   of

imprisonment of 262 months and a supervised release term of five

years.    That judgment was appealed and subsequently affirmed by

this Court.

               This recitation is merely background for purposes of

the instant appeal.               On March 9, 2009, Zayas filed his first

                                           - 3 -
motion    to       reduce   his   sentence      under     18       U.S.C.    §    3582(c),

pursuant      to    amendments    706   and    711   to   the       guidelines.           The

government stipulated to the reduction, which resulted in a two-

point    offense      level   decrease,        an   adjusted        offense      level    of

thirty-seven, and an amended sentencing range of 210 to 262

months.       The district court granted the motion, sentencing Zayas

at the bottom of the now-amended guidelines range to a term of

imprisonment of 210 months.

               The district court was faced with a case of déjà vu

when,    on    December     20,   2011,    Zayas     filed     a    second       motion   to

reduce    his      sentence   under       18   U.S.C.     §    3582(c),       this    time

pursuant      to    amendments    748   and    750   to   the       guidelines.           The

government again stipulated to the reduction, which resulted in

another two-point offense level decrease, an adjusted offense

level of thirty-five, and an amended sentencing range of 168 to

210 months.         The district court granted the motion, sentencing

Zayas at the bottom of the amended guidelines range to a term of

imprisonment of 168 months.

               On November 7, 2014, the court then faced "déjà vu all

over again," as the late Yogi Berra might have said, when the

defendant filed his third motion to reduce his sentence under 18

U.S.C. § 3582(c), this time pursuant to amendments 782 and 788

                                          - 4 -
to the guidelines.            This reduction would have resulted in yet

another two-point offense level decrease, an adjusted offense

level of thirty-three, and a sentencing range of 135 to 168

months.       But      this    time    there    was     a     twist.         Rather     than

stipulating       to   the     reduction,      both     the    government        and    the

probation   officer       opposed      the    motion,       citing     the    defendant's

leadership and enforcement roles, ownership of drug points, and

possession of a dangerous weapon in the course of the offense

conduct.

            In response, the defendant urged the district court to

reject the government's position.                      The defendant argued that

these factors had already been accounted for when the sentence

was initially imposed and did not, taken alone, reflect any

increased danger to public safety.                  The defendant also noted his

positive    disciplinary            record    and    rehabilitative           efforts    in

prison.

            On    March       16,    2015,    the   district      court       denied     the

motion using a form order.               The form states, in relevant part

that, "having considered [the defendant's] motion, and taking

into   account      the   policy       statement       set    forth     at     [U.S.S.G.]

§ 1B1.10    and     the   sentencing         factors    set    forth     in    18   U.S.C.




                                         - 5 -
§ 3553(a), to the extent that they are applicable, . . . the

motion is DENIED."     This appeal followed.

                                II.       Analysis

              "'[A] judgment of conviction that includes [a sentence

of imprisonment] constitutes a final judgment' and may not be

modified by a district court except in limited circumstances."

Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18

U.S.C.    §     3582(b)).       The        district     court's      power       under

§ 3582(c)(2) to reduce the prison term of a defendant who was

sentenced based on a guidelines range that has subsequently been

lowered   by     the   United    States           Sentencing    Commission        (the

"Commission")     constitutes    one       such    "exception   to   the     general

rule of finality" governing such sentences.               Id.

              District courts proceeding under § 3582(c)(2) follow a

two-step approach.      United States v. Candelaria-Silva, 714 F.3d

651, 656 (1st Cir. 2013).              First, the court determines "the

prisoner's     eligibility   for      a    sentence     modification       and    the

extent of the reduction authorized."                 Id. (quoting Dillon, 560

U.S. at 827).       At this stage, "the court considers whether it

has the legal authority to grant the reduction requested; thus,

its conclusions of law are reviewed de novo, and its factual

findings, for clear error."        Id.

                                      - 6 -
                             Second,                      the   court    "consider[s]     any    applicable

§ 3553(a) factors and determine[s] whether, in its discretion,

the reduction . . . is warranted in whole or in part under the

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

"Decisions at this stage are reviewed for abuse of discretion,

as the question whether to reduce a final sentence pursuant to

§ 3582(c)(2) 'is a matter [Congress] committed to the sentencing

court's sound discretion.'"                                         Candelaria-Silva, 714 F.3d at 656

(quoting United States v. Aponte–Guzmán, 696 F.3d 157, 159–61

(1st Cir. 2012)).                                         As such, even where the first step has been

met, and the defendant has been determined eligible to seek a

§ 3582(c) reduction, "the district judge may conclude that a

reduction would be inappropriate."                                             Freeman v. United States,

131 S. Ct. 2685, 2694 (2011).

                             Zayas               contends       that    the   district   court   abused   its

discretion by failing to consider the § 3553(a) factors and by

failing to give sufficient reasons for its decision.1                                             He claims


                                                            
              1
        The government urges us to consider the defendant's
argument waived because he failed to sufficiently cite or
develop the argument in his brief.   We assume without deciding
that Zayas did not waive his argument.       It is a "settled
appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."  United States v. Zannino, 895 F.2d 1, 17 (1st
 

                                                                    - 7 -
that one cannot discern what factors, if any, the court relied

on        in         denying                   his           motion.                       According                       to        Zayas,                 "no           reasons

whatsoever were given by the district court in its order denying

[his]               motion                 and           there                is         no         correlation                           to          the           statutory

factors set forth in § 3553(a)."                                                                       This, the defendant contends,

was           an          error               of          law            necessarily                           constituting                             an          abuse                of

discretion.                            See United States v. Caraballo, 552 F.3d 6, 8 (1st

Cir. 2008) ("A material error of law is perforce an abuse of

discretion.").

                             Despite the district court's admittedly Spartan denial

order, the defendant's argument comes up short.2                                                                                                       Zayas himself

acknowledges that the judge is not required to articulate the

applicability of each factor, "as long as the record as a whole

'demonstrates that the pertinent factors were taken into account

                                                                                                                                                                                                
Cir. 1990). As this Court has noted, "[i]t is not enough merely
to mention a possible argument in the most skeletal way, leaving
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones."       Id.    This rule is
commonly deployed, however, against ancillary arguments tossed
carelessly against the wall in the hope that one might stick.
Despite the paucity of authority offered by the appellant in
support of his position, we need not explore the contours of
this convention, for the appeal fails on the merits.
              2
        The parties do not truly contest the defendant's
eligibility for the reduction under step one of the analysis, so
we proceed directly to step two.


                                                                                        - 8 -
by the district court.'"                  United States v. Vautier, 144 F.3d

756, 762 (11th Cir. 1998) (quoting United States v. Eggersdorf,

126    F.3d   1318,      1322     (11th    Cir.    1997)).      In   the   sentencing

context,      we    have   held    that    a   judge's   statement       that   he   has

considered         the   relevant    §     3553(a)    factors    "is     entitled     to

significant weight."            United States v. Santiago-Rivera, 744 F.3d

229,    233    (1st      Cir.   2014)     (citing    United     States     v.   Dávila–

González, 595 F.3d 42, 49 (1st Cir. 2010)).                      Zayas has offered

no reason why this rule should not apply with equal force in the

§ 3582(c) context.

              Here, the district court utilized a form order that

explicitly states that the judge "[took] into account the policy

statement set forth at [U.S.S.G.] § 1B1.10 and the sentencing

factors set forth in 18 U.S.C. § 3553(a)[.]"                    Zayas derides this

as "stock language," but fails to provide any rationale as to

why the judge must type this phase afresh for each and every

reduction order rather than saving himself the effort by relying

upon a form prepared for this very purpose.

              Moreover, the record as a whole is sufficient for us

to infer the pertinent factors taken into account by the court

below.     United States v. Rodriguez-Rivera, 473 F.3d 21, 29 (1st

Cir. 2007) ("[A] court's reasoning can often be inferred by

                                           - 9 -
comparing what was argued by the parties or contained in the

pre-sentence report with what the judge did.") (quoting United

States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en

banc)).      The     government         opposed     the   motion      based     on    public

safety    concerns       and    argued       that    a    reduction      would       not    be

appropriate      given    the     defendant's        leadership        and    enforcement

roles, ownership of drug points, and possession of a dangerous

weapon in the course of the offense conduct.                              The probation

officer's recommendation echoed this assessment.                         The need for a

sentence    to     protect      the     public      is,   of    course,       one    of    the

§ 3553(a)     factors.            See    §      3553(a)(2)(C)         ("The    court,       in

determining        the   particular          sentence      to    be     imposed,          shall

consider . . . the need for the sentence imposed . . . to

protect      the         public         from        further       crimes         of        the

defendant . . . .").             In     fact,    Zayas    finds    himself       awkwardly

arguing     that     "[n]either         [the      defendant's]        motion        nor     the

government's        response       discussed         factors      relevant           to    the

§ 3553(a)     inquiry          (aside     from       public      safety       concerns)."

(emphasis added).            This is somewhat akin to a restauranteur

advising an allergic patron that his meal contains no shellfish

(aside from shrimp).




                                          - 10 -
             Perhaps     aware     of     his       weak   position,           the   defendant

advances one final argument.                    Zayas says that if the public

safety factor was determinative, then the district court would

not have granted his two prior reductions; ergo, the court could

not   have   denied     his    third      reduction        on     the    basis       of   public

safety.      While this argument is worth considering, it is more

sauce    than      substance.           There       is   nothing        incongruent         about

believing that successive reductions in a defendant's sentence

are   only   warranted        up   to    a     point.       The       district       court    was

entitled to determine that a reduction from 262 months to 210

months was warranted, and that a reduction from 210 months to

168 months was warranted, but that a reduction from 168 months

to 135 months would be the proverbial bridge too far.

             The     defendant      must        remember        that     the    Commission's

authorization of a discretionary reduction "does not entitle a

defendant     to    a   reduced    term        of     imprisonment       as     a    matter   of

right."      U.S.S.G. § 1B1.10 cmt. background.                         Rather, the final

decision is entrusted to "the sound discretion of the court."

Id.     Although the Commission's amendments reflect a generalized

determination that the reduction "should not jeopardize public

safety,"     U.S.S.G.      supplement            to      app.     C     amend.       782,     the

amendments      also    recognize        the    court's         role    in     conducting     an

                                          - 11 -
individualized assessment into whether retroactive application

is warranted on a case-by-case basis, see U.S.S.G. supplement to

app. C amend. 788 ("[P]ublic safety will be considered in every

case . . . in determining whether . . . a reduction in the

defendant's term of imprisonment is warranted . . . .") (citing

U.S.S.G. § 1B1.10, cmt. n.1(B)(ii)) (emphasis added).

            In   short,    the    record    adequately   reflects    the   basis

upon which the defendant's motion was denied.              We recognize that

the court could have expounded further upon the basis for its

decision.      Even a single sentence incorporating the government's

or probation officer's position might have spared this case a

trip to the seat of the First Circuit and all the attendant

effort   and     expense   associated      therewith.     However,    on   this

record, we cannot say that the court abused its discretion in

denying the defendant's motion.

                                 III.   Conclusion

            For the foregoing reasons, the judgment is AFFIRMED.




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