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. 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 12th day of December, two thousand seventeen.

PRESENT:           JOSÉ A. CABRANES,
                   DEBRA ANN LIVINGSTON,
                          Circuit Judges,
                   RICHARD W. GOLDBERG, 
                          Judge.


UNITED STATES OF AMERICA,

                            Appellee,                            17-265

                            v.

JUAN TOLENTINO, AKA Chamacho, AKA Ismael (Federal Prisoner: 91942-054),

                            Defendant-Appellant,

MANUEL PEGUERO-FRANCO, AKA Manny, EDWIN
LOPEZ DIAZ, AKA Doctor,

                            Defendants.**


    
     Judge Richard W. Goldberg, of the United States Court of International Trade, sitting by
designation.
    **
         The clerk is ordered to amend the caption of this case as shown herein.


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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, appeals 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 defendant 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 under the particular circumstances of the case.” United States v.
Christie, 736 F.3d 191, 194–95 (2d Cir. 2013) (internal 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) (citation omitted). 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.” 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 eligible for a sentencing reduction, that a reduction
was not warranted. The District Court reasonably relied on the same factors it considered at the
original sentencing proceeding, including the sophistication 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).


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                                       CONCLUSION

        We have considered Tolentino’s remaining arguments 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




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