     12-2714
     United States v. Hoousendove

                          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 25th day of October, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                JOHN G. KOELTL,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       United States of America,
14                Appellee,
15
16                    -v.-                                               12-2714
17
18       Shamont Hoousendove,
19                Defendant-Appellant,
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Marjorie M. Smith, Brooklyn, New
23                                             York.


                *
              Judge John G. Koeltl, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   FOR APPELLEE:              Jo Ann M. Navickas, (Sean C.
 2                              Flynn, on the brief), for
 3                              Loretta E. Lynch, United States
 4                              Attorney for the Eastern
 5                              District of New York, Brooklyn,
 6                              New York.
 7
 8        Appeal from an order of the United States District
 9   Court for the Eastern District of New York (Platt, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the order of the district court be
13   AFFIRMED.
14
15        Shamont Hoousendove appeals from the order of the
16   United States District Court for the Eastern District of New
17   York (Platt, J.), denying his two motions for resentencing
18   pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Hoousendove
19   argues that the district court’s order was procedurally
20   deficient and thus violated his due process rights because
21   the court did not require a written submission from
22   Hoousendove’s newly appointed counsel. We assume the
23   parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        There is no statutory right to counsel under the
27   Criminal Justice Act in connection with a § 3582(c) motion,
28   and the provision of counsel for such motions is left to the
29   discretion of the district court. United States v. Reddick,
30   53 F.3d 462, 465 (2d Cir. 1995). The merits of the motion
31   are a “significant factor in the exercise of that
32   discretion.” Id. at 465 n.2.
33
34        Section 3582(c)(2) provides that, “in the case of a
35   defendant who has been sentenced to a term of imprisonment
36   based on a sentencing range that has subsequently been
37   lowered by the Sentencing Commission ..., the court may
38   reduce the term of imprisonment, after considering the
39   factors set forth in section 3553(a) to the extent that they
40   are applicable, if such a reduction is consistent with
41   applicable policy statements issued by the Sentencing
42   Commission.” In exercising that discretion, the court must
43   comply with U.S.S.G. § 1B1.10, which directs a sentencing
44   judge to “determine the amended guideline range that would
45   have been applicable to the defendant if the amendment(s) to
46   the guidelines ... had been in effect at the time the


                                  2
 1   defendant was sentenced” and to assess the request for a
 2   sentence reduction accordingly. U.S.S.G. § 1B1.10(b)(1).
 3
 4        Here, the district court fully complied with
 5   § 3582(c)(2) and § 1B1.10. The court correctly calculated
 6   the new Guidelines range of 110 to 137 months. The court
 7   then reviewed Hoousendove’s history and characteristics, the
 8   nature and circumstances of the offense, and the legal basis
 9   for the original sentence, and concluded that no reduction
10   was warranted. Specifically, the court stated that its
11   application of a lower Guidelines range at the original
12   sentencing constituted a “substantial break” for
13   Hoousendove. This was clearly the case, given Hoousendove’s
14   extensive criminal history and the repeated drug dealing for
15   which he was convicted. The court also considered that
16   Hoousendove continued to violate rules and regulations while
17   in prison, receiving two disciplinary sanctions at FCI
18   Fairton.
19
20        It is clear from the district court’s review that, even
21   with a written submission from counsel, Hoousendove had a
22   very small likelihood of prevailing on the merits of his
23   motion. Because Hoousendove was not legally entitled to the
24   appointment of counsel, the district court did not abuse its
25   discretion in denying him relief without requesting a
26   written submission from defense counsel.
27
28        For the foregoing reasons, and finding no merit in
29   Hoousendove’s other arguments, we hereby AFFIRM the order of
30   the district court.
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34




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