United States v. Sergio Javier Granados , 830 F.3d 840 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-3143
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sergio Javier Granados
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: May 31, 2016
Filed: August 1, 2016
[Published]
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Before SMITH, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Sergio Javier Granados appeals the district court's1 denial of his motion for a
two-level sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on
Amendment 782 to the Guidelines. We affirm.
I. Background
On March 27, 1996, a jury found Granados guilty of 11 counts related to
conspiracy and distribution of cocaine and heroin, employing individuals under the
age of 18 to distribute cocaine, distribution of a controlled substance to a person
under the age of 21, and knowingly using and carrying firearms during and in relation
to a drug trafficking crime. Granados was sentenced to 288 months' imprisonment on
the drug-conspiracy charges and a consecutive 60 months' imprisonment for using a
firearm in connection with the drug offenses. On appeal, we reversed and remanded
for specific findings on drug quantity. United States v. Granados, 117 F.3d 1089 (8th
Cir. 1997). On remand, the district court made the necessary findings and reduced the
drug sentence by 12 months for a total sentence of 336 months' imprisonment.
"On November 1, 2014, Amendment 782 to the United States Sentencing
Guidelines (U.S.S.G.) took effect. This amendment, colloquially referred to as the
'Drugs Minus Two' Amendment, lowered by two the offense level based on drug
quantity under U.S.S.G. §§ 2D1.1 and 2D1.11 and made this two-level reduction
retroactive." United States v. Osten, 639 F. App'x 393, 393 (8th Cir. 2016)
(unpublished per curiam) (citing U.S.S.G. § 1B1.10(d) (2014)).
On May 19, 2015, Granados moved for a two-level reduction pursuant to 18
U.S.C. § 3582(c)(2) based on Amendment 782. The government opposed any
reduction, relying upon case-related considerations. The district court found that
Granados qualified for a sentence reduction under § 3582(c)(2) but denied Granados's
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
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motion, concluding that a sentence reduction would be inconsistent with the
Sentencing Commission's policy statements and the factors set forth in 18 U.S.C.
§ 3553(a).
Analyzing the § 3553(a) factors, the district court noted that "[t]he drug
trafficking operation involved a large quantity of drugs and violence" as evidenced
by Granados "intimidat[ing] and threaten[ing] others, both verbally and with a
firearm," and "assault[ing] several individuals at different times and direct[ing] others
to threaten and assault others." The court identified an instance in which "Granados
recruited another individual from Chicago to 'hit' . . . an individual who had gotten
into a fight with Granados on a prior occasion," paid "$2,500 for the 'hit,'" and
"provided a firearm for the shooting." The court additionally noted that Granados had
"directed the torching of a vehicle owned by an individual who had contacted law
enforcement" and cited a witness's testimony "that firearms were utilized both to
protect the drug distribution ring and were to be used against law enforcement, if
necessary."
The court acknowledged the "several achievements and accomplishments [that
Granados] made while incarcerated," stated its belief "that Granados has made a
concerted effort to improve his life and will be a productive member of society upon
his release if he continues on the same path," and recognized that Granados is a
different person today than he was at his original sentencing. The court nonetheless
concluded that "[i]t is . . . clear that Granados is not one of the nonviolent offenders
contemplated by the Sentencing Commission when it approved the Amendment. He
is not one of the people the Department of Justice had in mind when supporting the
Amendment's retroactivity." The court determined that "afford[ing] Granados relief
would be inconsistent with the policy statements of the Sentencing Commission as
well as the sentencing factors enumerated by Congress. The nature and circumstances
of this case and public safety considerations preclude this court from granting a
sentence reduction."
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II. Discussion
On appeal, Granados argues that the district court erred in denying his motion
for a sentence reduction pursuant to § 3582(c)(2) based on Amendment 782 because
the court considered the facts and circumstances of the drug conspiracy at the original
sentencing and on remand from this court, twice sentencing Granados within his then-
applicable Guidelines. According to Granados, the district court gave considerable
weight to improper factors and failed to consider important factors: (1) the district
court cited a specific allegation of violence—the alleged "hit"—that was rejected by
the original sentencing court, and (2) the district court failed to consider Granados's
positive post-sentencing accomplishments and path toward a productive future.
A defendant is not automatically entitled to a sentencing reduction pursuant to
§ 3582(c)(2). Osten, 639 F. App'x at 394 (citing United States v. Long, 757 F.3d 762,
764 (8th Cir. 2014)). Instead, § 3582(c)(2) "gives the district court discretion to
reduce a defendant's sentence if his sentencing range has subsequently been lowered
and the reduction is consistent with the § 3553(a) factors and applicable policy
statements issued by the Sentencing Commission." Id. (citing 18 U.S.C.
§ 3582(c)(2)). We review a district court's denial of a sentence reduction for an abuse
of discretion. Id.
Here, it is undisputed that Granados is eligible for the reduction, as the district
court determined. See Dillon v. United States, 560 U.S. 817, 827 (2010) ("At step
one, § 3582(c)(2) requires the court to follow the Commission's instructions in
§ 1B1.10 to determine the prisoner's eligibility for a sentence modification and the
extent of the reduction authorized."). Both parties agree that reducing the offense
level by two levels lowers the applicable Guidelines range from 262 to 327 months
to 210 to 262 months.
"At step two of the inquiry," the court must "consider any applicable § 3553(a)
factors and determine whether" the prisoner's particular circumstances warrant a
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reduced sentence. Id. Specifically, "[t]he court shall consider the nature and
seriousness of the danger to any person or the community that may be posed by a
reduction in the defendant's term of imprisonment." U.S.S.G. § 1B1.10
cmt. n.1(B)(ii). A court's "reference to § 3553(a) is appropriate only at the second step
of this circumscribed inquiry." Dillon, 560 U.S. at 827. Proceedings pursuant to
§ 3582(c)(2) are not "plenary resentencing proceedings." Id. "The district court has
'substantial latitude to determine how much weight to give the various factors under
§ 3553(a)' and [may] cho[o]se to give more weight to the aggravating factors of
recidivism and [the defendant's] criminal history." United States v. Thompson, No.
14-3523, 2016 WL 1178968, at *8 (8th Cir. Mar. 28, 2016) (quoting United States
v. Timberlake, 679 F.3d 1008, 1012 (8th Cir. 2012)).
Here, the district court exercised its discretion and expressly considered the
§ 3553(a) factors, recounting the nature and seriousness of Granados's offense,
Granandos's history and characteristics, and the need to promote respect for the law.
Based on these factors, the court concluded that Granados was "not one of the people
the Department of Justice had in mind when supporting the Amendment's
retroactivity." We conclude that the district court properly exercised its discretion in
choosing to give more weight to the aggravating factors, such as Granandos's criminal
history, rather than his post-sentencing rehabilitative efforts.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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