     14-2915
     United States v. Almanzar

                             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
ASUMMARY ORDER@). A PARTY CITING TO 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 23rd day of September, two thousand fifteen.
 1
 2   PRESENT:
 3              JON O. NEWMAN,
 4              ROBERT D. SACK,
 5              GERARD E. LYNCH,
 6                    Circuit Judges.
 7   _____________________________________
 8
 9   United States,
10                         Appellee,
11
12                  v.                                                           14-2915
13
14   Isaac Almanzar, AKA Lucky,
15
16                         Defendant-Appellant
17
18   Eddie Medina, AKA Pedro, et al.,
19
20                    Defendants.*
21   _____________________________________
22


     * The Clerk of Court is respectfully directed to amend the official caption in this case to conform
     with the caption above. See Fed. R. App. P. 43(c)(2).
 1   FOR DEFENDANT-APPELLANT:                         Isaac Almanzar, pro se, Glenville, West
 2                                                    Virginia.
 3
 4   FOR APPELLEES:                                   Peter A. Norling, Robert T. Polemeni,
 5                                                    Assistant United States Attorneys, for
 6                                                    Loretta Lynch, United States Attorney for
 7                                                    the Eastern District of New York,
 8                                                    Brooklyn, New York.
 9
10
11          Appeal from an order of the United States District Court for the Eastern District of

12   New York (Dora L. Irizarry, J.).


13          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

14   AND DECREED that the order of the district court is AFFIRMED.

15          Isaac Almanzar, proceeding pro se, appeals the district court’s order denying his

16   motion under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence of 300 months’

17   imprisonment. We assume the parties’ familiarity with the underlying facts and

18   procedural history.

19          Section 3582(c)(2) provides that a sentencing court may, after considering the

20   factors set forth in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the

21   Sentencing Commission, reduce a defendant’s term of imprisonment if his sentence was

22   based on a sentencing range that has subsequently been lowered by the Sentencing

23   Commission. As the district court recognized, Almanzar was eligible for a sentence

24   reduction under § 3582(c)(2) because Amendment 750 of the Sentencing Guidelines

25   retroactively reduced the base offense levels for crack cocaine offenses such as Almanzar’s

26   – in his case from a range of 360 months to life imprisonment to a range of 235 to 293

27   months’ imprisonment. The district court declined to reduce Almanzar’s sentence,


                                                  2
 1   however, based on its assessment of the § 3553(a) factors – including Almanzar’s

 2   leadership position in the Latin Kings gang, his criminal history of acts of violence, and the

 3   court’s finding that the amount of crack cocaine calculated in imposing the sentence was a

 4   “conservative estimate.” Gov. App’x 8. We review the district court’s decision for

 5   abuse of discretion. See United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).1

 6          Almanzar contends that the district court abused its discretion by denying his

 7   motion in part based on his leadership position in the Latin Kings, after stating at his

 8   original sentencing hearing that it would not consider that factor. His contention is

 9   factually inaccurate because the district court did not disclaim reliance on Almanzar’s gang

10   membership, but only his involvement in a separate uncharged drug distribution ring as

11   part of that membership. See 05-cr-00623-DLI, Doc. No. 177 at 19. Indeed, the district

12   court explicitly considered Almanzar’s gang membership at sentencing by referencing “his

13   position as First Crown of the Bushwick Tribe and . . . First Crown of the Supreme Team”

14   of the Latin Kings in assessing his culpability. Id. at 21.2

15          Moreover, we find no abuse of discretion in the district court’s denial of the motion

16   based on its assessment of the § 3553(a) factors and its finding that Almanzar poses a

     1
       A court abuses its discretion if its ruling is based “on an erroneous view of the law or on a clearly
     erroneous assessment of the evidence, or [the court] rendered a decision that cannot be located
     within the range of permissible decisions.” United States v. Borden, 564 F.3d 100, 104 (2d Cir.
     2009) (citation omitted).
     2
        Because the district court relied on Almanzar’s gang membership at sentencing, we need not
     consider whether a district court’s denial of a § 3582(c)(2) motion based partly on a factor that it
     declined to consider in imposing sentence might constitute an abuse of discretion. We note,
     however, that Almanzar has cited no case that supports his position, and that we previously
     explained that “[n]othing prevents a district court from making new findings of fact when ruling on
     a § 3582(c)(2) motion, so long as those findings are not inconsistent with those made at the original
     sentencing.” United States v. Rios, 765 F.3d 133, 138 (2d Cir. 2014), citing United States v.
     Davis, 682 F.3d 596, 612 (7th Cir. 2012).

                                                       3
1   danger to the community. See 18 U.S.C. § 3553(a) (directing court to consider, inter alia,

2   “the nature and circumstances of the offense and the history and characteristics of the

3   defendant,” and the need for the sentence to protect the public); Borden, 564 F.3d at 104

4   (reasoning that court acted “well within its authority” in denying § 3582(c) motion based

5   on the defendant’s criminal history).

6          We have considered all of Almanzar’s arguments and find them to be without merit.

7   Accordingly, we AFFIRM the order of the district court.

8                                             FOR THE COURT:
9                                             Catherine O=Hagan Wolfe, Clerk




                                                 4
