United States v. Camacho United States v. Rodriguez , 387 F. App'x 47 ( 2010 )

09-3823-cr (L); 09-3864-cr (Con)
United States v. Camacho; United States v. Rodriguez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of July, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 PETER W. HALL,
8 Circuit Judges,
9 RICHARD W. GOLDBERG,
10 Judge. *
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 09-3823-cr (L);
19 09-3864-cr (Con)
20
21 STEVEN CAMACHO, JAIME RODRIGUEZ,
22
23 Appellants. **
24
25
26
*
The Honorable Richard W. Goldberg, of the United States Court of
International Trade, sitting by designation.
**
The Clerk of the Court is respectfully directed to amend the official
caption as set forth above.
1 FOR APPELLANT CAMACHO: JOSHUA L. DRATEL, New York, NY.
2
3 FOR APPELLANT RODRIGUEZ: JOYCE C. LONDON, New York, NY.
4
5 FOR APPELLEE: PAUL M. KRIEGER, Assistant
6 United States Attorney, for
7 Preet Bharara, United States
8 Attorney for the Southern
9 District of New York, New York,
10 NY.
11
12 Appeal from the United States District Court for the
13 Southern District of New York (Keenan, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the judgment of the United States District
17 Court for the Southern District of New York be AFFIRMED.
18 Steven Camacho and Jaime Rodriguez appeal from a order
19 of the United States District Court for the Southern
20 District of New York, entered on September 8, 2009, denying
21 their respective motions for a reduction in their sentences
22 pursuant to 18 U.S.C. § 3582(c)(2). As noted by the
23 district court, defendants are each serving 300-month
24 sentences following their convictions, after a trial, for
25 drug trafficking and firearms offenses, and for conspiring
26 to tamper with a witness and to suborn perjury. United
27 States v. Camacho, Nos. 93 Cr. 549-02, 549-03 (JFK), 2009 WL
2
1 2905616, at *1 (S.D.N.Y. Sept. 3, 2009). 1 We assume the
2 parties’ familiarity with the underlying facts, the
3 procedural history, and the issues presented for review.
4 “A federal court generally ‘may not modify a term of
5 imprisonment once it has been imposed.’” United States v.
6 Dillon, 560 U.S. —, No. 09-6338, 2010 WL 2400109, at *2
7 (June 17, 2010) (slip op.) (Sotomayor, J.) (quoting 18
8 U.S.C. § 3582(c)); see generally United States v. Mock, —
9 F.3d —, No. 09 Cr. 4154, 2010 WL 2802553 (2d Cir. July 19,
10 2010) (per curiam). However, an exception exists “in the
11 case of a defendant who has been sentenced to a term of
12 imprisonment based on a sentencing range that has
13 subsequently been lowered by the Sentencing Commission.” 18
14 U.S.C. § 3582(c)(2). Under these circumstances, a district
15 court “may reduce the term of imprisonment, after
16 considering the factors set forth in section 3553(a) to the
17 extent that they are applicable, if such a reduction is
18 consistent with applicable policy statements issued by the
19 Sentencing Commission.” Id. (emphasis added); see also
1
In addition, the defendants are serving 360-month
sentences for subsequent convictions for conspiracy to
commit murder, the commission of two murders, attempted
murder, and related firearms offenses in aid of a
racketeering enterprise. See 2009 WL 2905616, at *1.
3
1 United States v. Savoy, 567 F.3d 71, 72 (2d Cir. 2009) (per
2 curiam). The government conceded that, as a result of an
3 amendment to Section 2D1.1 of the United States Sentencing
4 Guidelines relating to offenses involving “crack” cocaine,
5 defendants were eligible for a sentence reduction.
6 As the district court recognized, see 2009 WL 2905616,
7 at *1, “[b]ecause the statute states that a district court
8 may reduce the term of imprisonment, it clearly allows for a
9 district court to exercise its discretion when considering a
10 motion to reduce a sentence brought pursuant to §
11 3582(c)(2).” United States v. Borden, 564 F.3d 100, 104 (2d
12 Cir. 2009). The Supreme Court confirmed in Dillon that
13 § 3582(c) does not authorize “plenary resentencing
14 proceedings.” 2010 WL 2400109, at *7. However, the
15 district court must still “determine whether, in its
16 discretion, the reduction authorized . . . is warranted in
17 whole or in part under the particular circumstances of the
18 case.” Id.19 Here, although the district court acknowledged the
20 “recent apparent progress defendants have made while
21 incarcerated,” the court held that “reducing the sentence of
22 either defendant would create an unwarranted danger to the
4
1 public safety.” 2009 WL 2905616, at *2. We find no abuse
2 of discretion in the district court’s decision to deny a
3 reduction in the defendants’ sentences pursuant to §
4 3582(c)(2). Although defendants maintain that the district
5 court did not adequately consider the factors set out in 18
6 U.S.C. § 3553(a), we disagree. See United States v. Carter,
7 489 F.3d 528, 540-41 (2d Cir. 2007).
8 We have considered all of the defendants’ arguments on
9 appeal and find them to be without merit. Therefore, for
10 the foregoing reasons, the judgment of the district court is
11 hereby AFFIRMED.
12
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
5