13-4158-cr
United States v. Horace Stewart

                                       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 16th day of December, two thousand fourteen.

PRESENT:            JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                    PETER W. HALL,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                    Appellee,

                                  v.                                   No. 13-4158-cr

HORACE STEWART,

                    Defendant-Appellant.


FOR DEFENDANT-APPELLANT:                                Lucas E. Andino, New York, NY.

FOR APPELLEE:                                           Amy Busa, Michael P. Robotti, Assistant
                                                        United States Attorneys, for Loretta E. Lynch,
                                                        United States Attorney for the Eastern
                                                        District of New York, Brooklyn, NY.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Sterling Johnson, Jr., Judge).
     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.

        Defendant-appellant Horace Stewart appeals from the District Court’s October 23, 2013
order denying his motion, pursuant to 18 U.S.C. § 3582(c)(2), for a sentence reduction, based on an
amendment to the United States Sentencing Guidelines that lowered the base offense levels
applicable to certain cocaine base (“crack”) offenses. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

        On October 11, 2001, Stewart pleaded guilty, pursuant to a plea agreement with the
Government, to a superseding information charging him with one count of conspiracy to distribute
and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(C). Stewart’s Guidelines’ range at the time was 168 to 210 months’
imprisonment. The Government moved for an upward departure—to the statutory maximum
sentence of 240 months—based on its argument that Stewart was a career drug dealer and supplier
to a violent drug crew who, after being deported to Jamaica following two convictions for drug
dealing, re-entered the United States illegally and resumed his criminal activity. Stewart opposed the
Government’s motion and moved for a downward departure. The District Court rejected both
motions and sentenced Stewart to a term of imprisonment of 210 months—i.e., the top of the
applicable Guidelines range—to be followed by six years’ supervised release.

         In February 2008, Stewart filed his first motion for a reduction of his sentence under 18
U.S.C. § 3582, based on Amendment 706 to the United States Sentencing Guidelines, which reduced
the base offense level for certain crack cocaine offenses, including Stewart’s. See U.S.S.G. App. C.
Amend. 706 (effective Nov. 1, 2007). On January 30, 2009, the District Court denied Stewart’s
motion. We affirmed the District Court’s denial in an unpublished summary order. See United States
v. Stewart, 367 F. App’x 201 (2d Cir. 2010).

         On April 13, 2012, Stewart submitted a second motion for a reduction of his sentence under
18 U.S.C. § 3582, this time based on Amendment 750 to the Sentencing Guidelines, which further
reduced the offense level applicable to crack cocaine offenses. See U.S.S.G., 2010 Supp. to App. C,
Amend. 750 (effective Nov. 1, 2010). Applying the reduced offense level to Stewart’s guidelines
calculation would have yielded a range of 108 to 135 months—the District Court, however,
incorrectly stated in its order that the amended range was 108 to 168 months. On October 23, 2013,
the District Court denied the motion on the basis that Stewart had “not submitted sufficient
justification for upsetting the Court’s previous balancing of the factors outlined in 18 U.S.C.
§ 3553(a).” J.A. 91.

         On appeal, Stewart claims that the District Court abused its discretion in deciding not to
reduce his sentence by failing to consider his good conduct in prison since 2007. Stewart also
asserts that the District Court committed prejudicial procedural error by miscalculating his amended

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Guidelines’ sentencing range and by failing to consider the § 3553(a) factors as they pertained to his
post-2007 conduct.

        Under 18 U.S.C. § 3582(c)(2), a District Court “may reduce the term of imprisonment” of a
defendant whose sentence was “based on a sentencing range that has subsequently been lowered by
the Sentencing Commission,” after “considering the factors set forth in section 3553(a) to the extent
that they are applicable.” Following the enactment of the Fair Sentencing Act of 2010 (“FSA”), the
Sentencing Commission made retroactive the provisions of Amendment 750, which implements the
FSA. Accordingly, under Amendment 750, an eligible defendant may receive a reduction in his
sentence if the District Court determines—after considering the factors set forth in § 3553(a)—that
such a reduction is justified. See U.S.S.G. § 1B1.10 cmt. N. 1(B) (2012); Dillon v. United States, 560
U.S. 817, 828 (2010).

         Here, the District Court’s decision to deny Stewart’s request for a sentence reduction is
reviewed for “abuse of discretion.” United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009) (a
retroactive amendment using “may” merely authorizes a reduction in sentence, it does not require
one). Based upon our review of the record, we find no error in the District Court’s order, much less
an “abuse of discretion.” See generally In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining the
term of art “abuse of discretion”); Joseph T. Sneed, Trial-Court Discretion: Its Exercise by Trial Courts
and Its Review by Appellate Courts, 13 J. App. Prac. & Process 201, 207–08 (2012) (commentary by the
late Judge Sneed, a former Dean of the Duke Law School, on the several possible meanings of
“abuse of discretion”).

        First, we reject Stewart’s claim that the District Court failed to appropriately consider the
§ 3553(a) factors. In denying Stewart’s motion, the District Court expressly stated that “[t]he
imposed sentence of 210 months is not greater than necessary to achieve the objectives of
punishment set forth in § 3553(a)(2)(A)–(D).” J.A. 91. There is no obligation that the District
Court specifically enumerate or discuss each of the § 3553(a) factors, especially given the District
Court’s familiarity with Stewart’s case. Moreover, there is a “strong presumption” that the
sentencing court considered all arguments properly presented to it, see United States v. Negron, 524
F.3d 358, 361 (2d Cir. 2008), and Stewart has provided no evidence to the contrary.

         Second, the District Court’s error in calculating the amended Guidelines range was harmless.
The Government concedes that the District Court procedurally erred when it adopted the
Government’s incorrect statement that the amended Guidelines range was 108 to 168 months when,
in reality, it was 108 to 135 months. But “[a]ny error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). The Supreme Court has
stated that where “the district court misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error
did not affect the district court’s selection of the sentence imposed.” Williams v. United States, 503
U.S. 193, 203 (1992) (emphasis added).

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         Here, it is clear from the record that the miscalculation of the Guidelines range was not a
factor in the District Court’s decision to deny Stewart’s motion. As noted, the District Court based
its decision solely on the fact that the “imposed sentence of 210 months is not greater than
necessary to achieve the objectives of punishment set forth in § 3553(a)(2)(A)–(D),” and that
Stewart had “failed to raise any significant factors not previously considered at sentencing and at the
hearing on his first motion for resentence.” J.A. 91. There is no basis for concluding that the
District Court relied in any way on the incorrectly calculated Guidelines range in its denial on
October 23, 2013 of Stewart’s second motion for resentencing. Rather, as we recognized in
affirming the District Court’s denial of Stewart’s first motion for resentencing, Stewart’s extensive
criminal history, his institutional conduct, and his recidivism amply justify his 210-month sentence.

       We have considered all of the arguments raised by Stewart on appeal and find them to be
without merit. For the reasons stated above, the October 23, 2013 order of the District Court is
AFFIRMED.



                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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