United States v. Edwin Perez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6750

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

EDWIN PEREZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:99-cr-00124-REP-1)

Submitted: July 25, 2013 Decided: July 30, 2013

Before GREGORY, DAVIS, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Edwin Perez, Appellant Pro Se. Norval George Metcalf, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Edwin Perez appeals the district court’s order denying

his motion seeking a reduction of sentence under 18 U.S.C.

§ 3582(c)(2) (2006). This court reviews the denial of a

§ 3582(c)(2) motion for abuse of discretion. United States v.

Munn, 595 F.3d 183, 186 (4th Cir. 2010). A district court

abuses its discretion if it relies on an erroneous factual or

legal premise. DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th

Cir. 2008).

Pursuant to § 3582(c)(2), a district court may modify

the term of imprisonment “of a defendant who has been sentenced

. . . based on a sentencing range that has subsequently been

lowered by the Sentencing Commission,” if the Guidelines

amendment is retroactively applicable. 18 U.S.C. § 3582(c)(2).

Nevertheless, whether to reduce the defendant’s sentence lies

within the discretion of the district court: “The court is not

required to reduce a defendant’s sentence, even where the

current sentence is above the amended guidelines range.” United

States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010).

In determining whether to grant such a reduction, the

district court must consider the sentencing factors listed in 18

U.S.C. § 3553(a) (2006) and the policy statements of the

Sentencing Commission. 18 U.S.C. 3582(c)(2); U.S. Sentencing

Guideline Manual § 1B1.10, cmt. n.1(B)(i). Included among these

2
factors is the need to protect the public. See 18 U.S.C.

§ 3553(a)(2)(C); USSG § 1B1.10 cmt. n.1(B)(ii). A district

court may also “consider post-sentencing conduct of the

defendant that occurred after imposition of the original term of

imprisonment” in determining whether to grant a sentence

reduction. USSG § 1B1.10 cmt. n.1(B)(iii).

Our review of the record convinces us that the

district court did not abuse its discretion in denying Perez, on

the basis of public safety and to promote respect for the law, a

reduction of sentence. Accordingly, we affirm the district

court’s order. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED