16-280-cr
United States v. Morillo


                            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 19th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                                No. 16-280-cr

JOEL JESUS MORILLO, AKA “Sealed Defendant 1,”
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          JESSE M. SIEGEL, Law Office of Jesse M.
                                                  Siegel, New York, New York.

APPEARING FOR APPELLEE:                          KARL METZNER, Assistant United States
                                                 Attorney (Jaimie Nawaday, Assistant United
                                                 States Attorney, on the brief), for Preet Bharara,
                                                 United States Attorney for the Southern District
                                                 of New York, New York, New York.

           Appeal from a final order of the United States District Court for the Southern

District of New York (Katherine B. Forrest, Judge)

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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on January 20, 2016, is AFFIRMED.

       Defendant Joel Jesus Morillo, who is presently serving a 100-month prison

sentence for trafficking cocaine, appeals from the denial of his motion for a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United

States Sentencing Guidelines, which lowered the base offense levels applicable to most

drug crimes under U.S.S.G. § 2D1.1(c).         The district court recognized, and the parties

agree, that Morillo is eligible for a reduction under § 3582(c)(2). Even if a defendant is

eligible for a sentencing reduction under § 3582(c)(2), however, a district court has the

discretion to grant or deny such relief as it determines is warranted. See Dillon v.

United States, 560 U.S. 817, 826–27 (2010); United States v. Borden, 564 F.3d 100, 104

(2d Cir. 2009). In exercising its discretion, the court must consider the factors outlined

in 18 U.S.C. § 3553(a), see United States v. Christie, 736 F.3d 191, 194–95 (2d Cir.

2013), and present “at least some minimal statement of reasons for [its] action” to allow

for meaningful appellate review, id. at 197.

       We review the denial of a sentence reduction to an otherwise eligible defendant

for abuse of discretion, see United States v. Rios, 765 F.3d 133, 137 (2d Cir. 2014),

which we will identify only where the court’s ruling rests “on an erroneous view of the

law or on a clearly erroneous assessment of the evidence,” or “cannot be located within

the range of permissible decisions,” United States v. Borden, 564 F.3d at 104 (internal

quotation marks omitted). In conducting our review, we assume the parties’ familiarity



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with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

       The district court denied Morillo’s sentence-reduction motion after “review[ing]

the relevant records . . . , including [his] submissions in connection with [his] motion and

the transcript of the sentencing proceedings,” concluding that “the same factors that

supported the original sentence remain relevant and lead to the same finding that the 100

month sentence” is appropriate.      App’x 67.     The court noted that, at the original

sentencing, it “took into account the full range of circumstances, explicitly including the

factors identified in 18 U.S.C. § 3553(a).” Id. at 62. It nonetheless reviewed some of

those circumstances again, including Morillo’s “substantial assistance to the prosecution

of others” as well as “the seriousness of [his] drug crimes, which undoubtedly ruined

victims’ lives,” and which caused it to conclude that he was “a far more extensive drug

dealer than two other dealers against whom [he] had cooperated.” Id. at 62–63 (internal

quotation marks omitted). It also observed that it had considered the need for a sentence

to “provide adequate deterrence.” Id. at 63.

       This record demonstrates that the court sufficiently considered the § 3553(a)

factors and provided “at least some minimal statement of reasons for [its] action.”

United States v. Christie, 736 F.3d at 197. Accordingly, the district court did not abuse

its discretion in denying Morillo’s sentence-reduction motion. See United States v.

Raysor, 369 F. App’x 294, 296 (2d Cir. 2010) (holding that court’s emphasis on

considerations from original sentencing in denying § 3582(c)(2) motion was not abuse of

discretion).

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       In urging otherwise, Morillo contends that the district court insufficiently credited

his assistance to law enforcement and that such an approach is “unlikely to provide an

incentive for others to cooperate.”       Appellant’s Br. 21.       He points to U.S.S.G.

§ 1B1.10(b)(2)(B), which provides an exception to the rule that a sentence cannot be

reduced on a § 3582(c)(2) motion below the minimum of the amended Guidelines range

for defendants like Morillo who initially received below-Guidelines sentences based on

“substantial assistance.”    But § 1B1.10(b)(2)(B) states only that, in such cases, a

“reduction comparably less than the amended guideline range . . . may be appropriate.”

Id. (emphasis added). A district court is thus no more required to grant a reduction to a

defendant already credited for substantial assistance than it is to any eligible defendant.

       Morillo also faults the district court for considering the “nature and seriousness of

the danger . . . that may be posed” by a reduction in his sentence, as opposed to

considering merely how that factor applied at his initial sentencing. Appellant’s Br. 23

(quoting U.S.S.G. § 1B1.10 cmt. n.1(B)(ii)). But in referring back to the seriousness of

Morillo’s crimes as a justification for not reducing his sentence, the district court

satisfied any obligations imposed by § 1B1.10 cmt. n.1(B)(ii).

       Insofar as Morillo also takes issue with the court’s weighing of the § 3553(a)

factors, he presents no basis in law for requiring the district court to weigh any one such

factor more heavily than another. See United States v. Fernandez, 443 F.3d 19, 29–32

(2d Cir. 2006) (holding that reviewing court will not conclude that district court failed to

consider § 3553(a) factors because it “did not discuss each one individually,” id. at 30,

and that weight to be assigned factors is matter committed to exclusive discretion of

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district court as long as sentence imposed is substantively reasonable).         Moreover,

§ 3582(c)(2) and § 1B1.10 do not obligate the district court to “explain why its section

3553(a) analysis was unaffected by . . . the reduction in sentencing guidelines,”

Appellant’s Br. 26, but only to “consider[ ] the factors set forth in section 3553(a) to the

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

       Finally, Morillo suggests that the court abused its discretion in failing to consider

his post-sentencing conduct. But § 1B1.10 cmt. n.1(B)(iii) states only that a court “may

consider post-sentencing conduct of the defendant.” Thus, a court does not abuse its

discretion in failing explicitly to consider such conduct, much less in failing to grant a

reduction on that basis.

       We have considered Morillo’s other arguments and conclude that they are without

merit. Accordingly, we AFFIRM the order of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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