15-3371
United States v. Johnson

                     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 7th day of July, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             PIERRE N. LEVAL,
             REENA RAGGI,
                           Circuit Judges.

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

                 -v.-                                               15-3371

    LAYNE JOHNSON, AKA LW
             Defendant-Appellant.
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                        Nicholas J. Pinto, Esq., New
                                          York, NY.

    FOR APPELLEES:                        David C. James (John J. Durham
                                          on the brief), for Bridget M.
                                          Rohde, Acting United States
                                          Attorney for the Eastern


                                             1
                           District of New York, Brooklyn,
                           NY.

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

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

     Layne Johnson appeals from the order of the United
States District Court for the Eastern District of New York
(Feuerstein, J.) denying his motion for a sentence
reduction. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review. Johnson contends the district court
abused its discretion in denying his motion to reduce his
sentence following a reduction in the applicable guideline
range and that his sentence was procedurally and
substantively unreasonable. We find no merit in the claims.

     1. “[I]n the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered . . . the court may
reduce the term of imprisonment[.]” 18 U.S.C. § 3582(c)(2)
(emphasis added). Section 3582(c)(2) requires courts to
conduct a “two-step inquiry.” Dillon v. United States, 560
U.S. 817, 826 (2010). “First, the defendant in question
must be eligible for a reduction in sentence.” United
States v. Mock, 612 F.3d 133, 137 (2d Cir. 2010). A
defendant is eligible if he was sentenced pursuant to an
amended guideline, and if a reduced sentence would be
consistent with policy guidance from the Sentencing
Commission. Id. The parties agree that Johnson is eligible
for a sentence reduction.

     Second, the district court must “consider any
applicable § 3553(a) factors and determine whether, in its
discretion, the reduction authorized . . . is warranted in
whole or in part under the particular circumstances of the
case.” Id. (quoting Dillon, 560 U.S. at 827). The district
court denied Johnson’s motion at step two, a decision we
review for abuse of discretion. United States v. Borden,
564 F.3d 100, 104 (2d Cir. 2009).

     At Johnson’s initial sentencing, the sentencing range
was 78 to 97 months, and the sentence imposed was 78 months.

                             2
Under the amended Guidelines, his sentencing range would be
63 to 78 months. His basis for claiming abuse of discretion
is that 78 months was at the low end of the original range
but occupied the high end of the amended range. The fact
that the Guidelines were amended does not alone entitle
Johnson to a new sentence; rather, the district court is
instructed to consider various sentencing factors and
consider, in its discretion, whether a new sentence is
warranted. See Mock, 612 F.3d at 137. Here, the district
court considered the relevant factors and concluded that a
new sentence was unwarranted. We find no abuse of
discretion in that determination, despite Johnson’s
allegations of several errors.

     Johnson argues that the district court improperly
focused only on “policy-based factors that Johnson had no
control over,” such as “the need to reflect the seriousness
of the offense, to promote respect for the law, to provide
just punishment for the offense, [and] to afford adequate
deterrence.” Appellant’s Br. at 14 (emphasis omitted). But
the district court is required to consider those factors in
ruling on the motion. See 18 U.S.C. §§ 3582(c)(2), 3553(a).
Johnson argues that these factors “never change” and that he
has “no control” over them. But while the policy goals that
underlie these factors do not change, the application of
these sentencing factors to the specific facts of a
particular case does change. Here, the district court
ultimately found that the sentencing factors still warranted
a 78-month sentence. There was no abuse of discretion in
that finding.

     Johnson argues abuse of discretion in the district
court’s weighing of the sentencing factors. Johnson
complains that the district court improperly focused on his
disciplinary record in prison and failed to consider his
personal characteristics such as his history of substance
abuse and his service record in the Navy. These arguments
are unavailing. The district court could properly consider
his prison disciplinary record, see United States v.
Figueroa, 714 F.3d 757, 761 (2d Cir. 2013) (per curiam), and
there is no indication that it played an outsized role in
the district court’s decision. The district court also
stated that it reviewed Johnson’s pre-sentence report,
sentencing memoranda, and the parties’ filings in the
present motion; these documents discussed Johnson’s personal
history.


                             3
     In sum, Johnson has not demonstrated that the district
court abused its discretion in denying his motion.

     2. Johnson’s brief also discusses substantive and
procedural reasonableness. Johnson does not meaningfully
argue that there was any procedural error in his sentence,
and his discussion of “substantive unreasonableness” appears
to be a conclusory recasting of his § 3582 arguments. In
short, he provides no reason to question the propriety of
his sentence. In any event, in his plea agreement, Johnson
waived the right to appeal a sentence of 108 months or
below.

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

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




                             4
