   09-0578-cr
   United States v. Stewart



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
   York, on the 23 rd day of February, two thousand and ten.

   PRESENT:          AMALYA L. KEARSE,
                     PETER W. HALL,                      Circuit Judges,
                     JED S. RAKOFF,*                     District Judge.

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   UNITED STATES OF AMERICA,

                                                         Appellee,
            -v.-                                                                      No. 09-0578-cr

   HORACE STEWART,

                                                          Defendant-Appellant.
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   APPEARING FOR THE APPELLANT:                          LUCAS E. ANDINO , New York, New York.

   APPEARING FOR THE APPELLEE:                           STEPHEN E. FRANK, Assistant United States
                                                         Attorney (Susan Corkery, on the brief) for Benton J.


            *
          The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
   New York, sitting by designation.

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                                               Campbell, United States Attorney for the Eastern
                                               District of New York.

       This is an appeal the judgment of the United States District Court for the Eastern District

of New York (Johnson, J.) denying defandant-appellant’s motion for reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2). UPON DUE CONSIDERATION WHEREOF, it is

hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

       Defendant-appellant Horace Stewart appeals from the judgment of the United States

District Court for the Eastern District of New York (Johnson, J.) denying his motion for

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). This Court reviews a district court’s

decision to modify or maintain a sentence under 18 U.S.C. § 3582(c)(2) under an abuse of

discretion standard. United States v. Borden, 564 F.3d 100, 101 (2d Cir. 2009). We assume the

parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on

appeal. For the following reasons, we affirm the district court’s judgment.

       When presented with a § 3582(c)(2) motion, the 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 U.S.S.G. § 1B1.10(b)(1). If the defendant is eligible, the district court then may

reduce the sentence “after considering the factors set forth in section 3553(a) to the extent that

they are applicable.” 18 U.S.C. § 3582(c)(2).

       Here, the district court determined that Stewart was eligible for a sentence reduction, but

it declined to grant his section 3582(c)(2) motion. Stewart contends that this decision was an


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abuse of discretion for two main reasons: (1) the court misassessed the evidence of his

institutional conduct; and (2) the court double-counted his criminal history.

       Stewart’s arguments are without merit. First, Stewart concedes that the institutional

conduct of an inmate is relevant to a consideration of the section 3553(a) factors on resentencing.

See U.S.S.G. § 1B1.10, App. Note 1(B)(iii) (“The court may consider post-sentencing conduct of

the defendant that occurred after imposition of the original term of imprisonment in determining .

. . [w]hether a reduction in the defendant’s term of imprisonment is warranted . . ..”). Moreover,

a district court is not prohibited from considering a defendant’s record in evaluating a motion for

resentencing. To the contrary, a court is “well within its authority” in denying a resentencing

motion on the basis of a defendant’s “extensive criminal history.” Borden, 564 F.3d at 104. The

district court explained that its conclusion was “[b]ased upon submissions of counsel and oral

argument, based upon the unenviable record of Mr. Stewart, based upon the fact that Mr. Stewart

is an illegal alien and taking into consideration all the factors in 3553(a) . . ..” The undisputed

evidence before the court provided amply basis for the court to conclude that Stewart is a

recidivist, and that the previously imposed sentence was both appropriate and necessary to

protect the public from further crimes. See 18 U.S.C. 3553(a)(1), (2)(C).

       Accordingly, the judgment of the district court is AFFIRMED.



                                                       FOR THE COURT:

                                                       Catherine O’Hagan Wolfe, Clerk




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