United States v. Almanzar

SUMMARY ORDER Isaac Almanzar, proceeding pro se, appeals the district court’s order denying his motion under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence of 300 months’ imprisonment. We assume the parties’ familiarity with the underlying facts and procedural history. Section 3582(c)(2) provides that a sentencing court may, after considering the factors set forth in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission, reduce a defendant’s term of imprisonment if his sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. As the district court recognized, Almanzar was eligible for a sentence reduction under § 3582(c)(2) because Amendment 750 of the Sentencing Guidelines retroactively reduced the base offense levels for crack cocaine offenses such as Almanzar’s — in his case from a range of 360 months to life imprisonment to a range of 235 to 293 months’ imprisonment. The district court declined to reduce Almanzar’s sentence, however, based on its assessment of the § 3553(a) factors — including Almanzar’s leadership position in the Latin Kings gang, his criminal history of acts of violence, and the court’s finding that the amount of crack cocaine calculated in imposing the sentence was a “conservative estimate.” Gov. App’x 8. We review the district court’s decision for abuse of discretion. See United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009). 1 *10 Almanzar contends that the district court abused its discretion by denying his motion in part based on his leadership position in the Latin Kings, after stating at his original sentencing hearing that it would not consider that factor. His contention is factually inaccurate because the district court did not disclaim reliance on Almanzar’s gang membership, but only his involvement in a separate uncharged drug distribution ring as part of that membership. See 05-cr-00623-DLI, Doc. No. 177 at 19. Indeed, the district court explicitly considered Almanzar’s gang membership at sentencing by referencing “his position as First Crown of the Bushwick Tribe and ... First Crown of the Supreme Team” of the Latin Kings in assessing his culpability. Id. at 21. 2 Moreover, we find no abuse of discretion in the district court’s denial of the motion based on its assessment of the § 3553(a) factors and its finding that Almanzar poses a danger to the community. See 18 U.S.C. § 3553(a) (directing court to consider, inter alia, “the nature and circumstances of the offense and the history and characteristics of the defendant,” and the need for the sentence to protect the public); Borden, 564 F.3d at 104 (reasoning that court acted “well within its authority” in denying § 3582(c) motion based on the defendant’s criminal history). We have considered all of Almanzar’s arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court. Footnotes [1] A court abuses its discretion if its ruling is *10 based “on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or [the court] rendered a decision that cannot be located within the range of permissible decisions.” United States v. Borden, 564 F.3d 100, 104 (2d Cir.2009) (citation omitted). [2] Because the district court relied on Alman-zar's gang membership at sentencing, we need not consider whether a district court’s denial of a § 3582(c)(2) motion based partly on a factor that it declined to consider in imposing sentence might constitute an abuse of discretion. We note, however, that Alman-zar has cited no case that supports his position, and that we previously explained that ”[n]othing prevents a district court from making new findings of fact when ruling on a § 3582(c)(2) motion, so long as those findings are not inconsistent with those made at the original sentencing.” United States v. Rios, 765 F.3d 133, 138 (2d Cir.2014), citing United States v. Davis, 682 F.3d 596, 612 (7th Cir.2012).