16-1149-cr
United States v. Byron Nugent

                           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
30th day of March, two thousand seventeen.

Present:
            ROBERT D. SACK,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                16-1149

BYRON NUGENT, AKA Paul Campbell, AKA Paul
Moore, AKA Dred,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                  AVIK K. GANGULY, (Anjan K. Ganguly, on the brief),
                                          Ganguly Brothers, PLLC, Rochester, New York

For Appellee:                             FRANK T. PIMENTEL, for James P. Kennedy, Jr., Acting
                                          United States Attorney for the Western District of New
                                          York, Buffalo, New York




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       Appeal from an order of the United States District Court for the Western District of New

York (Geraci, C.J.).

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

DECREED that the order of the district court is AFFIRMED.

       Defendant-Appellant Byron Nugent appeals from an order of the United States District

Court for the Western District of New York (Geraci, C.J.), dated March 30, 2016, denying his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).              We assume the parties’

familiarity with the facts, procedural history of the case, and the issues on appeal.

       In considering a sentence reduction motion under § 3582(c)(2), district courts conduct a

multi-step analysis.   The district court must first determine whether the defendant is eligible for

a sentence reduction under § 1B1.10 of the Sentencing Guidelines. United States v. Christie,

736 F.3d 191, 194 (2d Cir. 2013).     If the defendant is eligible, then the district court may, after

considering the applicable 18 U.S.C. § 3553(a) factors and certain other factors identified in the

relevant application note, exercise its discretion to reduce the defendant’s sentence to within the

amended guideline range calculated under § 1B1.10 of the Sentencing Guidelines. United

States v. Wilson, 716 F.3d 50, 52 (2d Cir. 2013) (per curiam); see also U.S. Sentencing

Guidelines § 1B1.10, app. n.1(B) (articulating the relevant factors in the § 3582(c)(2) analysis).

       We review the decision the district court reaches with respect to this second component

of the § 3582(c)(2) determination for abuse of discretion. United States v. Rivera, 662 F.3d

166, 170 (2d Cir. 2011); United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009). We deem a

district court to have abused its discretion in ruling on this element of a § 3582(c)(2) motion only

“if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the




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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)).

       As a preliminary matter, the Government contends that we lack jurisdiction to review

Nugent’s appeal. It argues that our review of a district court’s § 3582(c)(2) decision is not

based on 28 U.S.C. § 1291, which “grants broad appellate jurisdiction over appeals of decisions

of district courts,” United States v. Doe, 93 F.3d 67, 68 (2d Cir. 1996), but is instead based on 18

U.S.C. § 3742, which “confers limited appellate jurisdiction over appeals of otherwise final

sentences” when certain conditions are met, Doe, 93 F.3d at 68.

       We recognize that there is a circuit split on precisely this question. Compare United

States v. Jones, 846 F.3d 366, 369-70 (D.C. Cir. 2017) (holding that jurisdiction arises under 28

U.S.C. § 1291); United States v. Washington, 759 F.3d 1175, 1180 (10th Cir. 2014) (same);

United States v. Dunn, 728 F.3d 1151, 1155-58 (9th Cir. 2013) (same); United States v. Mills,

613 F.3d 1070, 1074 (11th Cir. 2010) (same), with United States v. Howard, 644 F.3d 455, 458,

462 (6th Cir. 2011) (holding that jurisdiction arises under 18 U.S.C. § 3742).      See also Dunn,

728 F.3d at 1161-62 (O’Scannlain, J., concurring) (recognizing that binding Ninth Circuit

precedent holds that jurisdiction arises under 28 U.S.C. § 1291, but arguing that, if presented

with the question in the first instance, the more limited review provided for under 18 U.S.C.

§ 3742 would be appropriate).

       We need not enter this thicket, however, because we have already decided that appellate

jurisdiction arises under § 1291. See United States v. Johnson, 732 F.3d 109, 116 n.11 (2d Cir.

2013) (explaining that a district court’s jurisdiction over a § 3582(c)(2) motion arises under its

general federal question jurisdiction, 28 U.S.C. § 1331, indicating that any appeal after entry of

final judgment would fall under the general appellate jurisdiction provided by 28 U.S.C. § 1291


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rather than the sentencing-specific jurisdiction provided by 18 U.S.C. § 3742); United States v.

McGee, 553 F.3d 225, 226 (2d Cir. 2009) (per curiam) (observing that “[w]e have jurisdiction

under 28 U.S.C. § 1291” to review a district court’s decision on a motion under § 3582(c)(2)).1

          The Government attempts to distinguish Johnson and McGee from the present case on

the ground that the grounds for decision in those cases focused on the defendant’s eligibility for a

reduction under § 3582(c)(2), Johnson, 732 F.3d at 113-16; McGee, 553 F.3d at 227-29, whereas

Nugent is appealing the district court’s decision to deny a sentence reduction for which he was

eligible. In other words, the Government asserts that denials based on the first component of

the § 3582(c)(2) analysis (eligibility) are reviewed pursuant to § 1291, while those based on the

second component of the § 3582(c)(2) analysis (looking to the statutory factors governing

sentencing as well as other factors identified by the Sentencing Commission) are reviewed under

§ 3742.

        We see no basis for drawing such a distinction.        To do so, moreover, would upend the

approach to appellate review in § 3582(c)(2) cases we laid out in United States v. Christie, 736

F.3d 191 (2d Cir. 2013).      In Christie, we explained that “resolution of a sentence reduction

motion is a discretionary decision regarding the defendant’s fundamental liberty interests” and

that we therefore require “some indication of the rationale for the [district court’s] ruling . . . [to

preserve] meaningful appellate review.” Id. at 196.2         We have consistently followed Christie

in the years since, remanding to the district court in cases where a supplemental statement of


1
  Indeed, the Sixth Circuit cited McGee as an example of an “out-of-circuit decision[]” concluding that
decisions under § 3582(c)(2) “are appealable under § 1291.” United States v. Bowers, 615 F.3d 715,
720.
2
  Thus, even if Johnson and McGee did not decide the issue, and jurisdiction is more properly framed
under 18 U.S.C. § 3742, Christie would likely require us to construe § 3742 to permit review of whether
the district court’s exercise of discretion under § 3582(c)(2) was reasonable. Christie, 736 F.3d at 196.


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reasons was necessary to ensure meaningful appellate review.           See, e.g., United States v.

Monfort, 650 F. App’x 67, 68 (2d Cir. 2016); United States v. Mazza, 649 F. App’x 33, 35 (2d

Cir. 2016). In short, then, contrary to the Government’s view, our prior opinions make clear

that we have already decided the issue in favor of our jurisdiction over appeals from a district

court’s § 3582(c)(2) determination – whether that decision is premised on a first-stage eligibility

determination or a second-stage denial.

       Having assured ourselves of jurisdiction, we affirm the district court on the merits.      As

the Sentencing Guidelines require, the district court reconsidered the application of the § 3553(a)

factors to Nugent’s case and determined that those factors continued to warrant the 135-month

sentence originally imposed.    After reviewing the text of the district court’s order and the entire

record, we have concluded that any errors in the district court’s analysis were harmless.    This is

so because the circumstances of this case make sufficiently clear that the sum total of the district

court’s analysis was not dependent on any one of the factors it identified as supporting its

determination that a reduction in Nugent’s sentence was not appropriate. See United States v.

Leonard, 844 F.3d 102, 116-17 (discussing the application of harmless error analysis in the

§ 3582(c)(2) context); see also Christie, 736 F.3d at 196 (explaining that “[i]n some situations

. . . the reasons for the district court’s actions may be obvious from the history of the case”).

Because the factors correctly identified by the district court are sufficient to ground this ultimate

determination, we find no abuse of discretion in its decision to deny Nugent’s § 3582(c)(2)

motion.




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

Accordingly, we AFFIRM the order of the district court.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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