15‐3576‐cr United States v. Jefferson

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 7th day of October, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRIAN M. COGAN, District Judge.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 15‐3576‐cr

ALBERT JEFFERSON, III, AKA Albert Jefferson, Jr., Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting by designation.

FOR APPELLEE: JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT‐APPELLANT: MARYBETH COVERT, Federal Public Defenderʹs Office, Buffalo, New York.

Appeal from the United States District Court for the Western District of

New York (Siragusa, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Albert Jefferson, III, appeals from the district courtʹs

October 28, 2015 order denying his motion for a sentence reduction under

(c)(2). We assume the partiesʹ familiarity with the underlying facts and

procedural history of the case.

Jefferson pled guilty to conspiracy to distribute 5 grams or more of cocaine

base in violation of

(a lesser‐included offense of Count One of the

Indictment) and possession and discharge of a firearm in furtherance of a drug

trafficking offense in violation of

(c)(1)(A)(iii) (Count Two of the

Indictment). In the sentencing calculation set forth in the plea agreement, the parties

stipulated to a total offense level of 19 and a criminal history category of V, resulting in

an applicable guideline range of 60 to 71 months on Count One and a consecutive 120‐

month mandatory minimum on Count Two for a total of 180 to 191 months. The district

2 court sentenced Jefferson to 180 months, at the low end of the agreed‐upon guideline

range.

Jefferson appealed. The Second Circuit vacated Jeffersonʹs sentence on

Count One and instructed the district court to apply the Fair Sentencing Act of 2010 to

recalculate Jeffersonʹs sentence on Count One pursuant to Dorsey v. United States,

(2012). The district court resentenced Jefferson to a term of

imprisonment of 147 months, at the low end of his revised applicable guideline range of

147 to 153 monthsʹ imprisonment.

On March 24, 2015, Jefferson filed a motion for a reduction of his sentence

pursuant to

(c)(2). Although Jefferson was eligible for a sentence

reduction under Amendment 782 to the Sentencing Guidelines, the district court

exercised its discretion to deny Jeffersonʹs motion. The district court concluded that a

reduction was not warranted because of Jeffersonʹs post‐sentencing conduct in prison:

on two occasions he had engaged in misconduct and also demonstrated a ʺlack of

respect of authority and a lack of remorseʺ by ʺglorif[ying] his past criminal conductʺ on

his Facebook page. J. App. at 241.

ʺWe review a district courtʹs decision to deny a motion for sentence

reduction under

(c)(2) for abuse of discretion.ʺ United States v. Rios,

(2d Cir. 2014) (internal quotation marks and alterations omitted). An

abuse of discretion occurs when the district court ʺbase[s] its ruling on an erroneous

3 view of the law or on a clearly erroneous assessment of the evidence, or render[s] a

decision that cannot be located within the range of permissible decisions.ʺ United States

v. Borden,

(2d Cir. 2009) (internal quotation marks omitted). Applying

this standard, we conclude that the district court did not abuse its discretion in denying

Jeffersonʹs motion, and we therefore affirm the district courtʹs order.

When considering a motion for a sentence reduction under

(c)(2), a district court must first determine whether the defendant is eligible for a

reduction. United States v. Christie,

(2d Cir. 2013). If the defendant is

eligible, the district court may exercise its discretion to reduce the original sentence after

considering the applicable

(a) factors,

and ʺthe post‐sentencing

behavior of the defendant and any public safety concerns a reduction in sentence would

raise,ʺ United States v. Rivera,

(2d Cir. 2011). A defendantʹs post‐

sentencing conduct is an appropriate and sufficient justification for the denial of a

sentence reduction. See, e.g., United States v. Wilson,

(2d Cir. 2013) (per

curiam); United States v. Figueroa,

(2d Cir. 2013) (per curiam).

The parties agree that Jefferson was eligible for a sentence reduction under

(c)(2) and United States Sentencing Guidelines § 1B1.10. At Jeffersonʹs

original sentencing in 2013, the district court sentenced him to the low end of the

applicable guidelines range in recognition of his efforts to ʺbetter [himself] in prison.ʺ

J. App. at 154. In considering Jeffersonʹs motion for a sentence reduction, the district

4 court found that Jeffersonʹs conduct had significantly changed: the government

presented evidence in its opposition to Jeffersonʹs motion that he had been sanctioned

twice by the Bureau of Prisons since his resentencing for ʺ(1) refusing to obey an order

and disruptive conduct when he ran away from any officer attempting to conduct a pat

down search in December 2014, and (2) for disruptive conduct involving disrespectful

speech and actions towards staff members in 2015.ʺ J. App. at 170‐71. Moreover, the

district court found that defendantʹs Facebook posts, which repeatedly referenced the

ʺratsʺ who informed on him, J. App. at 198‐99, showed a lack of remorse. The district

court acted within its discretion when it considered these factors and denied a

reduction, despite the evidence presented by Jefferson of his participation in BOP

programs and the strong support he would receive from his family upon release. See

United States v. Romano,

(2d Cir. 2015) (ʺWe do not substitute our own

judgment for that of the district judge, nor will we ʹsecond guess the weight (or lack

thereof) that the judge accorded to a given factor or to a specific argument made

pursuant to that factor.ʹʺ (quoting United States v. Perez–Frias,

(2d Cir.

2011))).

We have reviewed Jeffersonʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

5