United States v. Moore

U
19-3437-cr
United States v. Moore

                         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 9th day of July, two thousand twenty-one.

        Present:
                    AMALYA L. KEARSE,
                    SUSAN L. CARNEY,
                          Circuit Judges.*
        _____________________________________

        UNITED STATES OF AMERICA,

                 Appellee,

                 v.                                                  No. 19-3437-cr

        CHRISTOPHER MOORE,

                 Defendant-Appellant,

        DANIEL GLADDEN, AKA RAZ, AKA
        RAZ GLADDEN, AKA NOODLES, AKA
        NOODLES GLADDEN,

                 Defendant.


*
 The late Circuit Judge Robert A. Katzmann, formerly a member of the panel, died before this summary
order was filed. Under 2d Cir. IOP E(b), this appeal is being decided by the remaining members of the
panel, who are in agreement.
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For Appellee:                                          David C. Pitluck, Assistant United States
                                                       Attorney (Samuel P. Nitze, Assistant United
                                                       States Attorney, on the brief), for Richard P.
                                                       Donoghue, United States Attorney for the
                                                       Eastern District of New York, Brooklyn, NY.

For Defendant-Appellant:                               Edward S. Zas, Assistant Federal Public
                                                       Defender, Federal Defenders of New York,
                                                       Inc., New York, NY.

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

York (Garaufis, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       On March 1, 2021, we issued a summary order vacating the district court’s sentencing order

dated October 17, 2019. We remanded the case to allow the district court to address an ambiguity

in the sentencing transcript and to clarify its intentions regarding the aggregate length of the prison

term that it was imposing on Defendant-Appellant Christopher Moore for his several crimes of

conviction. United States v. Moore, 845 F. App’x 51, 53-54 (2d Cir. 2021).

       In an order dated April 16, 2021, the district court confirmed that it did not earlier overlook

the applicability of Moore’s separate 60-month sentence when it selected a drug-offense sentence

for Moore. United States v. Moore, No. 92-CR-200-NGG, Dkt. 538 at 3 (S.D.N.Y. April 16, 2021).

As stated in its 2021 order, the district court then “reenter[ed] the terms of the 2019 Order, allowing

Mr. Moore’s sentence to stand at 324 months’ imprisonment for the drug offense, to be followed

by 60 months’ imprisonment for the firearms offense.” Id.

       Our March 1, 2021 order provided that either Moore or the government could restore our

jurisdiction following the district court’s entry of a clarifying order. Moore, 845 F. App’x at 54

                                                  2
(citing United States v. Jacobson, 

15 F.3d 19

, 22 (2d Cir. 1994)). Moore made such a request. The

appeal has therefore been reinstated.

        On appeal, Moore again argues that the district court erred in denying his motion for

reconsideration of a partial reduction of his sentence under 18 U.S.C. § 3582(c), urging that his

324-month drug-offense sentence is substantively unreasonable. He also renews his appeal of the

denial of his motion for sentence reduction under § 404(b) of the First Step Act of 2018, Pub. L.

No. 115-391, 132 Stat. 5194 (the “First Step Act”). We assume the parties’ familiarity with the

remaining underlying facts and procedural history in this case and refer to them only as needed to

explain our order affirming the district court’s denial of these motions.

        Beginning with Moore’s motion under 18 U.S.C. § 3582(c)(2), we review for abuse of

discretion the district court’s decision to deny Moore’s full requested sentencing reduction.

See United States v. Borden, 

564 F.3d 100

, 104 (2d Cir. 2009). “[A] district court has abused its

discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment

of the evidence, or rendered a decision that cannot be located within the range of permissible

decisions.” Id.1

        Moore argues that the district court erred by placing inappropriate weight on certain facts

in its 18 U.S.C. § 3553(a) analysis. In Moore’s view, the district court placed more weight on the

serious and violent nature of his 1993 offense conduct than that factor may bear, because the crimes

occurred nearly 30 years ago. Moore also posits that the district court placed too little weight on

the evidence of his rehabilitation since his conviction. He points to his ongoing contact with his




1
 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes,
and citations are omitted.
                                                      3
family, his authorship of an educational guidebook for young people, and his improving

disciplinary record.

       On review for abuse of discretion, we find this argument unpersuasive. Our court will only

rarely disturb the district court’s weighing of various aggravating and mitigating factors in

imposing a sentence: “Generally, if the ultimate sentence is reasonable and the sentencing judge

did not commit procedural error in imposing that sentence, we will not second guess the weight

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

to that factor.” United States v. Pope, 

554 F.3d 240

, 246–47 (2d Cir. 2009). Here, the district

court’s decision demonstrates that it carefully considered the facts highlighted by Moore and

arrived at a reasoned conclusion that a sentence of 324 months on the drug conspiracy count is

appropriate under § 3553(a). Moore neither alleges procedural error in the district court’s

consideration, nor can he demonstrate that the overall sentence imposed by the district court is

unreasonable: the 324-month sentence on the conspiracy charge falls within the applicable U.S.

Sentencing Guidelines range of 292 to 365 months, and the consecutive 60-month sentence on the

§ 924(c) charge is the mandatory minimum under the statute. See 18 U.S.C. § 924(c)(1)(A)(i),

(D)(ii). The district court twice before, in written decisions, reduced Moore’s sentence, once in

2009 in light of Amendment 706 of the U.S. Sentencing Guidelines, and once in 2015 in light of

Amendments 782 and 788 to the Guidelines. We identify no abuse of its discretion in the sentence

imposed or in the district court’s denial of Moore’s motion for reconsideration.

       Moving to Moore’s First Step Act challenge, we likewise review for abuse of discretion a

district court’s denial of relief to an eligible defendant. See United States v. Moore, 

975 F.3d 84

,

88 (2d Cir. 2020). Moore advances primarily the same arguments here as he did in the context of

his § 3582(c)(2) motion, and these arguments are unpersuasive for the same reasons. In support of
                                                 4
his position, Moore points additionally to several cases in which a defendant serving a sentence

for a crack cocaine-related conviction received a sentencing reduction under the First Step Act.

See, e.g., United States v. Martinez, No. 04-cr-48 (JSR), 

2019 WL 2433660

 (S.D.N.Y. June 11,

2019). But the First Step Act does not mandate sentence reductions; rather, reductions under its

terms are committed to a district court’s sound discretion. See First Step Act § 404(c), 132 Stat. at

5222 (“Nothing in this section shall be construed to require a court to reduce any sentence pursuant

to this section.”); Moore, 975 F.3d at 89. Moore is not entitled to a First Step Act sentencing

reduction simply because certain other defendants received such relief.

       We have considered Moore’s remaining arguments and find in them no basis for disturbing

the district court’s decision. For the foregoing reasons, the order of the district court is

AFFIRMED.

                                                              FOR THE COURT:

                                                              Catherine O’Hagan Wolfe, Clerk




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