15-1638
United States v. Vasquez
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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of October, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 15-1638
16
17 RICHARD VASQUEZ, AKA BIGGIE
18 Defendant-Appellant,
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: DANIEL S. PARKER, Parker &
22 Carmody, LLP, New York, New
23 York.
24
25
26
27
1
1 FOR APPELLEE: MICHAEL FERRARA, for Preet
2 Bharara, United States Attorney
3 for the Southern District of New
4 York (Karl Metzner, on the
5 brief).
6
7 Appeal from a judgment of the United States District
8 Court for the Southern District of New York (Kaplan, J.).
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12 Richard Vasquez appeals from the judgment of the United
13 States District Court for the Southern District of New York
14 (Kaplan, J.) denying his motion for a reduced sentence under
15 18 U.S.C. § 3582(c)(2). We assume the parties’ familiarity
16 with the underlying facts, the procedural history, and the
17 issues presented for review. We conclude that the district
18 court acted within its discretion.
19 In 2011, Vasquez pleaded guilty to one count of
20 conspiracy to distribute and to possess with intent to
21 distribute crack cocaine. At the time, his Sentencing
22 Guidelines range (based primarily on amount) was between 87
23 and 108 months. The government requested a sentence of 120
24 months because Vasquez had shot two individuals in a gang
25 dispute, and the district court imposed a sentence of 108
26 months.
2
1 In 2014, the United States Sentencing Commission issued
2 Amendment 782, which reduced the offense level for drug
3 crimes, including cocaine offenses. The Sentencing
4 Commission authorized persons whose Guidelines Ranges had
5 been retroactively reduced to move for reduced sentences
6 pursuant to 18 U.S.C. § 3582(c)(2). Under the changes in
7 Amendment 782, Vasquez’s revised Guidelines range would be
8 70-87 months.
9 Vasquez filed a § 3582(c)(2) motion with the district
10 court seeking a reduced sentence of 70 months. Vasquez
11 offered four reasons: 1) the change in the Guidelines for
12 offenses based on controlled substances; 2) his youth (aged
13 20) at the time of his offense; 3) his good behavior and
14 rehabilitation in prison; and 4) the circumstance that,
15 after his federal conviction, a state judge sentenced him to
16 3-1/2 years in prison for assault with the expectation that
17 his federal and state sentences would run concurrently,
18 whereas the federal and state sentences ran consecutively.
19 The district court ruled that Vasquez was likely
20 eligible for a sentencing reduction, but that, given his
21 crimes of violence, no sentence reduction was warranted.
22 Section 3582(c)(2) provides that a district court “may”
23 reduce the term of imprisonment, and we review a district
3
1 court’s refusal to do so for abuse of discretion. United
2 States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).
3 The district court did not abuse its discretion. It
4 considered all of Vasquez’s arguments along with the factors
5 set forth in 18 U.S.C. § 3553(a), and ultimately declined to
6 reduce the sentence given Vasquez’s “commission of a number
7 of serious crimes of violence”–-namely shooting two people,
8 one in the face. Vasquez’s search for errors is unavailing.
9 The district court did consider his youth, prison conduct,
10 and criminal history; it was entitled to consider his
11 shootings in sentencing; and a district court may find facts
12 at sentencing without the right to cross-examination, United
13 States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005).
14 For the foregoing reasons, and finding no merit in
15 Vasquez’s other arguments, we hereby AFFIRM the judgment of
16 the district court.
17
18 FOR THE COURT:
19 CATHERINE O’HAGAN WOLFE, CLERK
20
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