     12-3263-cr
     United States v. Vassell, et al.

                          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 5th day of June, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judge,
10                JOHN F. KEENAN,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               12-3263-cr
18
19       DONALD VASSELL, a/k/a CRAT,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22



                *
                  The Honorable John F. Keenan, United States
         District Judge for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             Colleen P. Cassidy, Federal
 2                              Defenders of New York, Inc., New
 3                              York, New York.
 4
 5   FOR APPELLEE:              Emily Berger (Sylvia S. Shweder,
 6                              on the brief), for Loretta E.
 7                              Lynch, United States Attorney
 8                              for the Eastern District of New
 9                              York, Brooklyn, New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Eastern District of New York (Johnson, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Defendant Donald Vassell appeals from the judgment of
19   the United States District Court for the Eastern District of
20   New York (Johnson, J.), denying his motion under 18 U.S.C.
21   § 3582(c)(2) for a reduction in his sentence. We assume the
22   parties’ familiarity with the underlying facts, the
23   procedural history, and the issues presented for review.
24
25        We review the district court’s denial of Vassell’s
26   motion for an abuse of discretion. See United States v.
27   Rivera, 662 F.3d 166, 170 (2d Cir. 2011); United States v.
28   Borden, 564 F.3d 100, 104 (2d Cir. 2009).
29
30        1.  Section 3582(c)(2) provides that, “in the case of
31   a defendant who has been sentenced to a term of imprisonment
32   based on a sentencing range that has subsequently been
33   lowered by the Sentencing Commission[,] . . . the court may
34   reduce the term of imprisonment.” (Emphasis added). When
35   deciding whether to exercise its discretion to reduce a
36   defendant’s sentence under § 3582(c)(2), a district court
37   (1) “shall consider the factors set forth in 18 U.S.C.
38   § 3553(a),” (2) “shall consider the nature and seriousness
39   of the danger to any person or the community that may be
40   posed by a reduction in the defendant’s term of
41   imprisonment,” and (3) “may consider post-sentencing conduct
42   of the defendant that occurred after imposition of the term
43   of imprisonment . . . .” U.S.S.G. § 1B1.10 cmt. n.1(B)
44   (emphases added); see also Dillon v. United States, 130 S.
45   Ct. 2683, 2692 (2010).
46


                                  2
 1        2.  Here, the district court explicitly considered the
 2   § 3553(a) factors, and there is no requirement of a more
 3   detailed explanation. See United States v. Borden, 564 F.3d
 4   100, 104 (2d Cir. 2009) (affirming denial of resentencing
 5   where district court stated only that it had “review[ed] the
 6   relevant records . . . and consider[ed] the factors set out
 7   in 18 U.S.C. § 3553(a) and the danger that the defendant
 8   poses to the community”). The district court also found
 9   that Vassell’s crimes were egregious and that he had a
10   leadership role within the conspiracy.
11
12        3.  Although the district court never explicitly
13   considered the danger to the community, its consideration of
14   the egregious nature of the crime sufficed. See United
15   States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (“As long
16   as the judge is aware of both the statutory requirements and
17   the sentencing range or ranges that are arguably applicable,
18   and nothing in the record indicates misunderstanding about
19   such materials or misperception about their relevance, we
20   will accept that the requisite consideration has
21   occurred.”).
22
23        4.  The district court did not err by declining to
24   consider Vassell’s post-sentencing conduct. Application
25   Note 1(B)(iii) to section 1B1.10 of the Guidelines Manual
26   gives district courts discretion as to whether to consider
27   this factor by using the word “may” rather than “shall.”
28   U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).
29
30        For the foregoing reasons, and finding no merit in
31   Vassell’s other arguments, we hereby AFFIRM the judgment of
32   the district court.
33
34                              FOR THE COURT:
35                              CATHERINE O’HAGAN WOLFE, CLERK
36




                                  3
