     15-1638
     United States v. Vasquez

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of October, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                ROSEMARY S. POOLER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-1638
16
17       RICHARD VASQUEZ, AKA BIGGIE
18                Defendant-Appellant,
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        DANIEL S. PARKER, Parker &
22                                             Carmody, LLP, New York, New
23                                             York.
24
25
26
27


                                                  1
1    FOR APPELLEE:                 MICHAEL FERRARA, for Preet
2                                  Bharara, United States Attorney
3                                  for the Southern District of New
4                                  York (Karl Metzner, on the
5                                  brief).
6
7        Appeal from a judgment of the United States District

8    Court for the Southern District of New York (Kaplan, J.).

9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10   AND DECREED that the judgment of the district court be

11   AFFIRMED.

12       Richard Vasquez appeals from the judgment of the United

13   States District Court for the Southern District of New York

14   (Kaplan, J.) denying his motion for a reduced sentence under

15   18 U.S.C. § 3582(c)(2).     We assume the parties’ familiarity

16   with the underlying facts, the procedural history, and the

17   issues presented for review.     We conclude that the district

18   court acted within its discretion.

19       In 2011, Vasquez pleaded guilty to one count of

20   conspiracy to distribute and to possess with intent to

21   distribute crack cocaine.     At the time, his Sentencing

22   Guidelines range (based primarily on amount) was between 87

23   and 108 months.   The government requested a sentence of 120

24   months because Vasquez had shot two individuals in a gang

25   dispute, and the district court imposed a sentence of 108

26   months.



                                     2
1        In 2014, the United States Sentencing Commission issued

2    Amendment 782, which reduced the offense level for drug

3    crimes, including cocaine offenses.   The Sentencing

4    Commission authorized persons whose Guidelines Ranges had

5    been retroactively reduced to move for reduced sentences

6    pursuant to 18 U.S.C. § 3582(c)(2).   Under the changes in

7    Amendment 782, Vasquez’s revised Guidelines range would be

8    70-87 months.

9        Vasquez filed a § 3582(c)(2) motion with the district

10   court seeking a reduced sentence of 70 months.   Vasquez

11   offered four reasons: 1) the change in the Guidelines for

12   offenses based on controlled substances; 2) his youth (aged

13   20) at the time of his offense; 3) his good behavior and

14   rehabilitation in prison; and 4) the circumstance that,

15   after his federal conviction, a state judge sentenced him to

16   3-1/2 years in prison for assault with the expectation that

17   his federal and state sentences would run concurrently,

18   whereas the federal and state sentences ran consecutively.

19       The district court ruled that Vasquez was likely

20   eligible for a sentencing reduction, but that, given his

21   crimes of violence, no sentence reduction was warranted.

22       Section 3582(c)(2) provides that a district court “may”

23   reduce the term of imprisonment, and we review a district



                                  3
1    court’s refusal to do so for abuse of discretion. United

2    States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).

3        The district court did not abuse its discretion.     It

4    considered all of Vasquez’s arguments along with the factors

5    set forth in 18 U.S.C. § 3553(a), and ultimately declined to

6    reduce the sentence given Vasquez’s “commission of a number

7    of serious crimes of violence”–-namely shooting two people,

8    one in the face.   Vasquez’s search for errors is unavailing.

9    The district court did consider his youth, prison conduct,

10   and criminal history; it was entitled to consider his

11   shootings in sentencing; and a district court may find facts

12   at sentencing without the right to cross-examination, United

13   States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005).

14       For the foregoing reasons, and finding no merit in

15   Vasquez’s other arguments, we hereby AFFIRM the judgment of

16   the district court.

17
18                               FOR THE COURT:
19                               CATHERINE O’HAGAN WOLFE, CLERK
20




                                   4
