16-3909(L)
United States v. Diaz

                        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 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
17th day of November, two thousand seventeen.

Present:
                 PIERRE N. LEVAL,
                 DEBRA ANN LIVINGSTON,
                 DENNY CHIN,
                        Circuit Judges,

_____________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                 v.                                                16-3909(L), 16-3961(con)

Aaron B. Pike, Diane Guadalupe Retamoza, Marina
Retamoza, Jason Pike, Richard E. Pearson, Jr.,
Gregory R. Pattison, Christopheer A. Lobe,
Benjamin J. Osman, Matthew J. Harrison, Richard
C. Alicea, Sr., Jose Melendez, Rafael Montanez, Jr.,
Jerad M. Davis,

                              Defendants,

DANIEL DIAZ,

                        Defendant-Appellant.
_____________________________________


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For Defendant-Appellant:                     Jayme L. Feldman, Federal Public Defender’s
                                             Office, Western District of New York, Buffalo, NY.

For Appellee:                                James P. Kennedy, Jr., Acting United States
                                             Attorney, Mary C. Baumgarten, Assistant United
                                             States Attorney, United States Attorney’s Office,
                                             Buffalo, NY.


       Appeal from a judgment of the United States District Court for the Western District of

New York (Arcara, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       On January 17, 2006, Defendant-Appellant Daniel Diaz (“Diaz”) pleaded guilty to one

count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C § 848(a) (“the

CCE count”), and one count of possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1) and (2) (“the firearm possession count”). At the time of the

plea, Diaz’s sentencing range for the CCE count was 360 months to life, to be followed by an

additional mandatory consecutive term of 60 months for the firearm possession count. The

district court subsequently sentenced Diaz to 360 months for the CCE count, which, combined

with the consecutive 60 months for the firearm possession count, led to an aggregate sentence of

420 months. On November 1, 2014, the United States Sentencing Commission’s amendments to

United States Sentencing Guideline (“USSG”) § 2D1.1(c) became effective. Both Diaz and the

government agree that the amendment lowered Diaz’s Sentencing Guidelines range on the CCE

count to 324 to 405 months. Diaz subsequently filed a motion pursuant to 18 U.S.C. § 3582(c)(2)

to reduce his 360-month sentence on the CCE count. On November 4, 2016, the district court




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denied Diaz’s motion. Diaz timely appealed. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

       As all parties agree that Diaz is eligible for a sentence reduction, “we review [the] district

court’s decision to deny [Diaz’s] motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion.”

United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013) (quoting United States v. Borden, 564

F.3d 100, 104 (2d Cir. 2009)). Under this standard, we may vacate the district court’s decision only

if the court “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.” Borden, 564 F.3d at 104 (quoting Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)).

       Diaz puts forward three arguments for why the district court abused its discretion, none of

which we find persuasive. First, Diaz argues that the district court failed to give an adequate

explanation for why Diaz deserved a sentence at the low end of the original Guidelines, but not the

low end of the amended Guidelines. We disagree. Consistent with its obligations under

§ 3582(c)(2), the district court properly considered Diaz’s 360-month sentence in light of the

sentencing factors outlined in § 3553(a), as well as Diaz’s post-sentencing behavior and the danger

to public safety that he posed. See U.S.S.G. § 1B1.10 cmt. n.1(B); United States v. Rivera, 662

F.3d 166, 170 (2d Cir. 2011); see also United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir.

2008) (“[I]n the absence of record evidence suggesting otherwise, we presume that a sentencing

judge has faithfully discharged her duty to consider the statutory factors.” (internal quotation

marks omitted) (quoting United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006))). The district

court found that reducing Diaz’s sentence would “severely minimize the seriousness of [Diaz’s]

offense,” since Diaz helped run an organization that transported a large quantity of illegal drugs

into the United States, and his criminal activity “resulted in the brutal murder of two people.”


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A144–A145 (internal quotation marks omitted). The district court also found that reducing Diaz’s

sentence would fail to deter him from returning to criminal activity after his release, noting that

Diaz had initiated the drug conspiracy in question after absconding from a New York State

Department of Corrections temporary release program. Finally, the court explained that Diaz’s

post-sentencing conduct was “far from exemplary,” A146, and involved possessing a dangerous

weapon, attempting to introduce drugs into prison, and refusing to obey orders. The district court

thus provided far more than the “minimal statement of reasons” necessary for our review of its

decision, Christie, 736 F.3d at 197, and we cannot second guess the district court’s weighing of the

relevant sentencing factors, see United States v. Romano, 794 F.3d 317, 339 (2d Cir. 2015).

       Second, Diaz argues that the district court abused its discretion by considering Diaz’s

misconduct while in prison, even though Diaz had already been punished for these infractions. But

the district court could certainly take this conduct into account in deciding Diaz’s § 3582(c)(2)

motion. See United States v. Figueroa, 714 F.3d 757, 761 (2d Cir. 2013) (per curiam). In

particular, the district court found that Diaz’s prison conduct reflected the danger that Diaz posed

to public safety, the likelihood that Diaz would return to criminal activity upon his release, and the

need to impose a harsh sentence for deterrence purposes. The court did not err in considering

Diaz’s prison conduct in light of these factors. See 18 U.S.C. § 3553(a)(2)(A), (B), (C); Rivera,

662 F.3d at 170.

       Finally, Diaz argues that the district court failed to consider meaningfully the

reasonableness of Diaz’s 360-month sentence in light of his aggregate sentence of 420 months,

even though it had discretion to do so under Dean v. United States, 137 S. Ct. 1170, 1176–77

(2017). We have previously held that, when a defendant will be serving a mandatory consecutive

sentence under § 924(c), a court cannot take that sentence into account when calculating the


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amount of time to be served for a predicate offense. See United States v. Chavez, 549 F.3d 119,

135 (2d Cir. 2008). We have not yet determined how Dean impacted our decision in Chavez, and

we need not do so here. In Diaz’s case, the district court expressly noted that, even assuming

arguendo that it could consider Diaz’s § 924(c) sentence in determining the reasonableness of his

§ 848(a) sentence, it would have still found that an “aggregate sentence of 420 months’

imprisonment is sufficient, but not greater than necessary, to comply with” the factors outlined

in § 3553(a). A147. Thus, even if Dean did overrule our decision in Chavez, the district court

made clear that it would have denied Diaz’s § 3582(c)(2) motion regardless. Cf. Dean, 137 S. Ct. at

1175 (noting that the district court judge would have likely given the petitioner a reduced sentence

if § 924(c) did not bar him from doing so).

                                         *       *       *

       We have considered Diaz’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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