24-714-cr United States v. Cirino

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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING TO 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 18th day of December, two thousand twenty-four.

PRESENT: BETH ROBINSON, ALISON J. NATHAN, Circuit Judges, VINCENT L. BRICCETTI, District Judge. * _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 24-714-cr

LUIS CIRINO, AKA GORDO, AKA G,

Defendant-Appellant,

*Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation. MICHAEL RIVERA, ANGEL SALINAS, AKA CHINO, JAVIER VASQUEZ, ANGEL CRUZ, ALBA LORENGIE FILOMENO-GOMEZ, JASMINE DELGADO, OMAR RIVERA, AKA O,

Defendants.

_________________________________________ FOR APPELLANT: KELLY M. BARRETT (Allison Kahl, Thomas McCudden, on the brief) for Terence S. Ward, Federal Defender, District of Connecticut.

FOR APPELLEE: DANIEL CUMMINGS, (Robert S. Ruff, Conor M. Reardon, on the brief) for Vanessa Roberts Avery, United States Attorney, District of Connecticut.

Appeal from an order of the United States District Court for the District of

Connecticut (Oliver, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order entered on March 12, 2024, is

AFFIRMED.

Defendant Luis Cirino appeals from a district court order denying his

motion for a sentence reduction pursuant to

(c)(2). We assume

the parties’ familiarity with the underlying facts, procedural history, and

arguments on appeal, to which we refer only as necessary to explain our decision

to affirm.

2 Cirino pled guilty in 2019 to conspiracy to possess with intent to distribute

several kilograms of cocaine in violation of

(a)(1), 841(b)(1)(A),

and 846. Following the United States Sentencing Guidelines (the “Guidelines”),

the sentencing court calculated that Cirino had a total offense level of 31 and a

total criminal history score of 5, which falls into criminal history category III.

Cirino’s five-point criminal history score included two points—known as “status

points”—that the sentencing court added because Cirino committed his offense

while serving a sentence of supervised release for a different conviction. The

sentencing court calculated an advisory Guidelines range of 135 to 168 months’

incarceration and imposed a prison sentence of 135 months.

In November 2023, the United States Sentencing Commission promulgated

Amendment 821 to the Guidelines, which eliminated the practice of adding two

“status points” to a criminal history score when a defendant committed a crime

while serving a sentence for a previous criminal conviction. See U.S.S.G. App. C,

amend. 821, Part A (2023). The Sentencing Commission determined that its

elimination of “status points” would apply retroactively.

Cirino thus moved

for a reduction in his sentence under

(c)(2), asking the district

3 court to recalculate and lower his sentence under the retroactive provision of

Amendment 821.

Applying the retroactive amendment, pursuant to which Cirino fell into

criminal history category II, the district court calculated an updated advisory

Guidelines range of 121 to 151 months’ imprisonment. The district court

concluded that, notwithstanding Cirino’s eligibility for a sentence reduction

under Amendment 821, no sentence reduction was warranted under the

sentencing considerations listed in

(a). See App’x 36-42. In

reviewing the § 3553(a) factors, the district court emphasized the seriousness of

the conduct leading to Cirino’s conviction, his leadership role, his criminal

history, and the fact that he committed the crime while on supervision for a prior

conviction. It also considered his post-sentence conduct, including a disciplinary

citation for “Escape.” Id. at 41. In light of these factors, the district court

concluded that reducing Cirino’s sentence would not serve the purposes of

sentencing. The district court therefore denied Cirino’s motion for a sentence

reduction and allowed his original sentence of 135 months’ imprisonment to

stand. See id. Cirino appealed, arguing that the district court erred when it

declined to reduce his sentence.

4 We review the district court’s denial of Cirino’s motion for abuse of

discretion; we review questions of law without deference to the district court.

See United States v. Williams,

(2d Cir. 2024). We discern no such

abuse of discretion or legal error here.

Cirino first argues that the district court abused its discretion when it

considered Cirino’s history of recidivism as a factor weighing against a sentence

reduction. Cirino correctly notes that the Sentencing Commission promulgated

Amendment 821 because it viewed “status points” as unfairly punitive of

recidivists with no effective reduction in recidivism. See Defendant’s Br. 7-8. But

we reject the suggestion that the amendment signifies that a court considering a

motion for sentence reduction should never consider the fact that an individual

reoffended while on supervision.

Here, the district court concluded that Cirino’s history of recidivism was

particularly concerning given Cirino’s conviction for leading a cocaine

distribution operation so shortly after his release from prison for a different

narcotics conspiracy conviction. See App’x 41. Despite the Sentencing

Commission’s general conclusion that the “status points” were not helpful for

the purposes of calculating an advisory Guidelines sentence range, the district

5 court did not abuse its discretion when it considered the specific circumstances

of Cirino’s recidivism and concluded that there was a strong need for deterrence

in this particular case.

We likewise reject Cirino’s argument that the district court overstated the

seriousness of Cirino’s criminal history. Cirino does not contend that the district

court misstated any facts about Cirino’s criminal history; he just challenges the

district court’s description of that history as “extensive” given that a number of

his convictions were far enough in the past that they did not count in his criminal

history score for Guidelines purposes. But the district court’s description of

Cirino’s criminal history as “extensive” was not clearly erroneous in light of his

complete history; the district court is not limited to the Guidelines criminal

history framework in characterizing Cirino’s past criminal history. See, e.g.,

United States v. Diaz-Collado,

(2d Cir. 1992); United States v.

Soliman,

(2d Cir. 1989). And we see no abuse of discretion in

the district court’s determination that Cirino’s history was a factor supporting its

conclusion that the “significant need for deterrence” weighed against reducing

Cirino’s sentence. App’x 41.

6 We similarly reject Cirino’s contention that the district court assigned

inordinate weight to his post-sentence disciplinary citation for “Escape” from his

minimum security facility. But it falls to the district court to determine the

weight assigned to that fact. See United States v. Keitt,

(2d Cir.

2021) (deferring to the district court’s assignment of weight to respective

§ 3553(a) factors).

Finally, Cirino argues in his reply brief that the district court improperly

considered that Cirino’s offense involved drugs that were cut and multiplied.

“Issues raised for the first time in a reply brief are generally deemed waived.”

Conn. Bar Ass’n v. United States,

, 91 n.13 (2d Cir. 2010). But we

exercise our discretion to note that the district court’s decision does not rely in

significant part on the notion that Cirino cut the narcotics he distributed; rather,

the district court emphasized that Cirino’s conduct was especially harmful to the

community because it involved large, multi-kilogram shipments of cocaine.

Even if the record does not support the conclusion that Cirino ever cut or

multiplied drugs, the district court did not clearly err in concluding that “[m]any

thousands of drug doses were dispensed as a result of Cirino’s conduct.” App’x

40.

7 * * *

Accordingly, the District Court’s order is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8