United States v. Gonzales
United States v. Gonzales
Opinion of the Court
SUMMARY ORDER
Defendant-appellant Rafael Gonzales appeals from an order of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge), entered on March 29, 2007, denying Gonzales’ motion for a reduced sentence, after having originally sentenced him upon a guilty plea principally to 121 months’ imprisonment for one count of kidnaping in the aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and one count of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a), and 84 months’ consecutive imprisonment for one count of knowingly and intentionally possessing and brandishing a firearm in the furtherance of the kidnaping, in violation of 18 U.S.C. § 924(c)(l)(A)(ii), by judgment entered on April 10, 2001. We assume the parties’ familiarity with the relevant procedural history, facts, and issues on appeal.
Gonzales first argues that, although he had no automatic right to counsel in seeking a reduction in his sentence under 18 U.S.C. § 3582(c)(2), once the District Court appointed counsel and his counsel failed to advocate on his behalf, the Dis
We also reject Gonzales’ argument that the District Court committed procedural error in determining not to modify the sentence. When a defendant’s “term of imprisonment” is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o),” the court may reduce the sentence “after considering the factors set forth in [18 U.S.C. § ] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Here, the District Court clearly reviewed Gonzales’ argument and proceeded to consider the factors set forth in § 3553(a), as required by § 3582(c)(2). It then determined that the sentence, as imposed, best reflected those factors. This determination merits “due deference.” See Gall v. United States, - U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We thus reject Gonzales’ argument, and conclude that the sentence was well within the broad range of reasonable sentences that the District Court could have imposed. See United, States v. Fernandez, 443 F.3d 19, 26 (2d Cir.), cert. denied, — U.S. —, 127 S.Ct. 192, 166 L.Ed.2d 143 (2006).
We have considered all of the defendant-appellant’s remaining arguments and find them without merit. Accordingly, the judgment of the District Court is AFFIRMED.
. Gonzales’ motion to reduce his sentence also cited Amendment 598, however, that amendment does not apply retroactively, and is not pressed on appeal. Thus, we do not consider it.
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