12-2373-cr
United States v. Wilson

                         U NITED S TATES C OURT OF A PPEALS
                              FOR THE S ECOND C IRCUIT


                               August Term 2012

   (Submitted:      April 12, 2013                 Decided:     May 16, 2013)

                           Docket No. 12-2373-cr
                            ____________________

                           U NITED S TATES    OF   A MERICA ,

                                                       Appellee,

                                         v.

                                   J AMES W ILSON ,

                                             Defendant-Appellant.
                            ____________________

Before:
                   K EARSE   AND   C HIN , Circuit Judges,
                                                       *
                          AND H ALL , District Judge.
                             ____________________

           Appeal from an order of the United States District

Court for the Eastern District of New York (Platt, J.)

denying a motion for a sentence reduction pursuant to 18

U.S.C. § 3582(c)(2) and Amendment 750 to the U.S.

Sentencing Guidelines Manual.

           A FFIRMED .


     *
          The Honorable Janet C. Hall, of the United States
District Court for the District of Connecticut, sitting by
designation.
                       ____________________

                               John J. Durham, Susan Corkery,
                                    Assistant United States
                                    Attorneys, for Loretta E.
                                    Lynch, United States
                                    Attorney for the Eastern
                                    District of New York,
                                    Brooklyn, New York, for
                                    Appellee.

                               Kenneth Scott Williamson,
                                    Freedom Foundation, PLLC,
                                    Goodlettsville, Tennessee,
                                    for Defendant-Appellant.
                       ____________________

P ER C URIAM :

             Defendant-Appellant James Wilson appeals from the

district court's May 18, 2012 memorandum and order denying

his motion to reduce his sentence pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 750 to the U.S. Sentencing

Guidelines (the "Guidelines"), which lowered the base

offense levels for crack cocaine offenses.     We hold that

the district court did not abuse its discretion by denying

Wilson's motion to reduce his sentence to within the

amended Guidelines range.     Accordingly, we affirm.




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                          BACKGROUND

         Wilson was convicted, following a plea of guilty,

of one count of distributing 114.64 grams of crack and 160

grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(B)(iii).    At Wilson's sentencing on November

22, 2005, the district court calculated his Guidelines

range as 188 to 235 months and sentenced him to 200 months'

imprisonment.

         In March 2008, the district court issued an order

to show cause why it should not, sua sponte, reduce

Wilson's sentence pursuant to 18 U.S.C. § 3582(c)(2) and

Amendment 706 to the Guidelines, which lowered the base

offense levels for crack offenses, effective retroactively.

See U.S.S.G. app. C, amend. 706 (2012) (effective Nov. 1,

2007); see also id. app. C, amend. 713 (effective Mar. 3,

2008); id. § 1B1.10(c).    Under the 2008 amended Guidelines,

Wilson's Guidelines range was 151 to 188 months.    On

September 30, 2008, the district court reduced Wilson's

sentence to 168 months' imprisonment.

         On October 21, 2011, Wilson filed a motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and

                             - 3 -
Amendment 750 to the Guidelines, which further lowered the

base offense levels for crack offenses, effective

retroactively.   See U.S.S.G. app. C, amend. 750 (2012)

(effective Nov. 1, 2011); see also id. app. C, amend. 759

(effective Nov. 1, 2011); id. § 1B1.10(c) & cmt. n.4.       In a

written memorandum and order dated May 18, 2012, the

district court calculated Wilson's 2011 amended Guidelines

range as 130 to 162 months' imprisonment, but declined to

reduce Wilson's sentence below 168 months' imprisonment.

This appeal followed.

                           DISCUSSION

         We review for abuse of discretion a district

court's denial of a motion to reduce a sentence pursuant to

18 U.S.C. § 3582(c)(2).    United States v. Borden, 564 F.3d

100, 104 (2d Cir. 2009).    An abuse of discretion occurs

where a district court "'base[s] its ruling on an erroneous

view of the law or on a clearly erroneous assessment of the

evidence, or render[s] a decision that cannot be located

within the range of permissible decisions.'"    Id.

(quoting Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)).




                             - 4 -
          Pursuant to 18 U.S.C. § 3582(c)(2), a district

court may reduce a defendant's sentence "based on a

sentencing range that has subsequently been lowered by the

Sentencing Commission."   18 U.S.C. § 3582(c)(2).     When

presented with a motion to reduce a sentence pursuant to

§ 3582(c)(2), a district court first must consider whether

the defendant is eligible for a reduction by calculating

the Guidelines range that would have been applicable had

the amended Guidelines been in place at the time the

defendant originally was sentenced.     See Dillon v. United

States, 130 S. Ct. 2683, 2691 (2010) (citing U.S.S.G.

§ 1B1.10(b)(1)).   If the defendant is eligible for a

sentence reduction, the district court "may" reduce the

sentence "after considering the factors set forth in

[§] 3553(a) to the extent that they are applicable, if such

a reduction is consistent with applicable policy statements

issued by the Sentencing Commission."     18 U.S.C.

§ 3582(c)(2); see also Dillon, 130 S. Ct. at 2691.

          A retroactive amendment to the Guidelines "merely

authorizes a reduction in sentence; it does not require

one."   United States v. Rivera, 662 F.3d 166, 170 (2d Cir.

                            - 5 -
2011).   In determining whether a reduction is warranted and

the extent of any such reduction, the court may also

consider the "post-sentencing conduct of the defendant that

occurred after imposition of the original term of

imprisonment."     U.S.S.G. § 1B1.10, cmt. n.1(B)(iii); see

also Rivera, 662 F.3d at 170 ("In determining whether to

modify a sentence, a judge must consider not only the

traditional sentencing factors set forth in 18 U.S.C.

§ 3553(a), but also the post-sentencing behavior of the

defendant and any public safety concerns a reduction in

sentence would raise.").

          On appeal, Wilson asserts that the district court

abused its discretion by denying his motion to reduce his

sentence based on evidence that he was disciplined in

prison four times between March 2006 and March 2007.

          First, Wilson contends that "Application Note

1(B)(iii) to § 1B1.10 of the U.S.S.G. prohibits the

consideration of conduct that occurred prior to a

defendant's sentencing or re-sentencing, since that conduct

has already been taken into account in determining the

prior sentence."    Appellant Br. at 8 (emphasis added).

                              - 6 -
Wilson's reliance on that provision is misplaced, how ever,

because a reduction in sentence pursuant to 18 U.S.C.

§ 3582(c) is not a resentencing.     See Dillon, 130 S. Ct. at

2690-92.   "By its terms, § 3582(c)(2) does not authorize a

sentencing or resentencing proceeding.    Instead, it

provides for the 'modif[ication of] a term of imprisonment'

by giving courts the power to 'reduce' an otherwise final

sentence in circumstances specified by the

Commission. . . .   Section 3582(c)(2)'s text, together with

its narrow scope, shows that Congress intended to authorize

only a limited adjustment to an otherwise final sentence

and not a plenary resentencing proceeding."     Id. at 2690-

91; see id. at 2694 ("§ 3582(c)(2) does not authorize a

resentencing").

           Second, Wilson argues that it was "contradictory"

for the district court not to resentence him within the

amended Guidelines range when it did so in 2008, when the

district court was already aware of his misconduct in

prison in 2006 and 2007 and there had been no additional

misconduct in the intervening time.     We disagree.    In

deciding Wilson's motion, the district court properly

                             - 7 -
considered the amended Guidelines range, as well as the

statutory factors set forth in 18 U.S.C. § 3553(a).     In

addition, the district court was permitted to -- and did --

consider Wilson's post-sentencing conduct, including the

disciplinary infractions he committed in prison in 2006 and

2007.   See U.S.S.G. § 1B1.10, cmt. n.1(B)(iii).   After

considering the relevant factors, the district court

explained that the previously-imposed sentence of 168

months was "necessary to protect the public and to deter

further criminal behavior."

          The district court did not abuse its discretion by

denying Wilson's motion to reduce his sentence to within

the amended Guidelines range.    Rather, the district court

certainly had the discretion to conclude that a sent ence of

168 months was as low as the circumstances warranted, even

in light of the lower Guidelines range.

                         CONCLUSION

          For the foregoing reasons, we AFFIRM the order of

the district court.




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