15-3779
United States v. Green

                     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 1st day of December, two thousand sixteen.

    PRESENT: DENNIS JACOBS,
             ROSEMARY S. POOLER,
                           Circuit Judges.
             GEOFFREY W. CRAWFORD,*
                           District Judge.

    - - - - - - - - - - - - - - - - - - - -X
    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               15-3779**

    YULANDER GREEN,
             Defendant-Appellant.
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           *
             Judge Geoffrey W. Crawford, United States District
    Court for the District of Vermont, sitting by designation.
           **
             The Clerk of Court is respectfully directed to
    amend the caption of the case to appear as above.
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FOR APPELLANT:             Marianne Mariano, Federal Public
                           Defender’s Office for the
                           Western District of New York,
                           Buffalo, NY.

FOR APPELLEE:              Monica J. Richards, for William
                           J. Hochul, Jr., United States
                           Attorney for the Western
                           District of New York.

     Appeal from an order of the United States District
Court for the Western District of New York (Siragusa, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the order of the district court be
AFFIRMED.

     Defendant Yulander Green appeals from the order of the
United States District Court for the Western District of New
York (Siragusa, J.), denying his motion under 18 U.S.C. §
3582(c)(2) for a sentence reduction. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     Section 3582(c)(2) provides that, “in the case of a
defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been
lowered by the Sentencing Commission[,] . . . the court may
reduce the term of imprisonment.” (Emphasis added). In
deciding whether to reduce the defendant’s sentence, the
court follows a “two-step inquiry.” Dillon v. United
States, 560 U.S. 817, 826 (2010). First, the district court
determines if the defendant is eligible for a sentence
reduction, which depends on whether “the reduction would be
‘“consistent with applicable policy statements issued by the
Sentencing Commission”--namely, [U.S.S.G.] § 1B1.10.’”
United States v. Mock, 612 F.3d 133, 137 (2d Cir. 2010)
(quoting Dillon, 560 U.S. at 826). Second, if the prisoner
is eligible for a reduction, the district court “consider[s]
any applicable [18 U.S.C.] § 3553(a) factors and
determine[s] whether, in its discretion, the reduction
authorized by reference to the policies relevant at step one
is warranted in whole or in part under the particular
circumstances of the case.” Dillon, 560 U.S. at 827.

     There is no dispute that Green is eligible for a
reduction. The question is whether the district court

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properly denied Green’s motion for a reduction in sentence
at step two. We review this decision for abuse of
discretion. 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. (quoting Sims v. Blot, 534 F.3d
117, 132 (2d Cir. 2008)).

     Here, after considering the § 3553(a) factors and the
relevant policy statement from the Sentencing Commission,
the district court determined that a reduction would be
inappropriate because of “the nature of the defendant’s
history and characteristics,” “the need for the sentence to
reflect the seriousness of the offense,” and the fact that
“the defendant has proven to be a danger to the community.”
J. App’x at 197. In support of this conclusion, the court
stated that Green had been a leader of a violent street
gang, that he had possessed weapons while engaging in drug
distribution, and that while on pre-sentence release in the
instant case, Green had illegally procured a weapon and used
it.

     1. Green argues that the district court’s reliance on
conduct that occurred prior to his original sentencing was
error because that misconduct was already considered in the
original sentence, and is now treated less severely by the
sentencing guidelines.

     However, at step two of the analysis required under §
3582(c)(2), the district court need only consider whether
the “particular circumstances of the case” justify a
reduction of sentence in light of the § 3553(a) factors.
Dillon, 560 U.S. at 827. Here, the district court
adequately considered these factors and found that a
reduction was unwarranted because Green was a danger to the
community and that a lower sentence would inadequately
reflect the seriousness of Green’s crime. Given the gravity
of Green’s offense and his use of a gun while on pre-
sentence release, we find no abuse of discretion in that
conclusion.

     More generally, we are not persuaded by Green’s
suggestion that a sentence reduction is mandated, or
presumed, when the guidelines range for the underlying
conduct has been lowered and the defendant has avoided

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additional misconduct. In some cases, the conduct for which
the defendant was originally incarcerated may, standing
alone, justify the retention of the original sentence even
though the guidelines range has been reduced. So the
district court found here, and the statute requires nothing
more. See United States v. Wilson, 716 F.3d 50, 53 (2d Cir.
2013) (per curiam) (affirming district court’s denial of §
3582(c)(2) motion when the defendant had engaged in no
additional misconduct since the reduction of the relevant
guidelines range).

     2. Green contends that the district court committed
clear error when it characterized Green as “a leader of a
violent street gang.” J. App’x at 197. The court’s
description was at most an overstatement: Green had
testified that he was a long-term member of the gang, that
he lent money to younger members of the gang, that he rented
several houses for the gang, and that he determined who
could sell drugs on those properties. Based on this
testimony, the district court’s description of Green as a
“leader” did not rise to the level of clear error. In any
event, the district court denied Green’s motion not because
he was a “leader” of the gang, but because he had “proven to
be a danger to the community” and because a lower sentence
would not “reflect the seriousness of [Green’s] offense.”
J. App’x at 197. The district court did not abuse its
discretion in reaching these conclusions.

     3. Green argues that the district court insufficiently
credited Green’s efforts toward rehabilitation in prison.
This argument is unavailing. “The weight to be afforded any
given argument made pursuant to one of the § 3553(a) factors
is a matter firmly committed to the discretion of the
sentencing judge” and is generally beyond review. United
States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). Green
asked the district court to consider his positive post-
sentence conduct and, in the absence of evidence to the
contrary, we presume that the judge considered the argument.
See id., 443 F.3d 19, 29-30 (2d Cir. 2006).

     For the foregoing reasons, and finding no merit in
Green’s other arguments, we hereby AFFIRM the order of the
district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK



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