16-149-cr
United States v. Bishop


                           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.

       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 January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                               No. 16-149-cr

PATRICK BISHOP,
                                 Defendant-Appellant.
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FOR APPELLANT:                                    MaryBeth Covert, Research & Writing
                                                  Attorney, for Marianne Mariano, Federal Public
                                                  Defender for the Western District of New York,
                                                  Buffalo, New York.

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.




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       Appeal from a final order of the United States District Court for the Western

District of New York (David G. Larimer, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on January 6, 2016, is AFFIRMED.

       Defendant Patrick Bishop, who is presently serving a 108-month prison term for

trafficking cocaine, appeals from the denial of his motion for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States

Sentencing Guidelines, which lowered the base offense levels applicable to most drug

crimes under U.S.S.G. § 2D1.1(c). We review a district court’s denial of a sentence

reduction to an otherwise eligible defendant for abuse of discretion, see United States v.

Rios, 765 F.3d 133, 137 (2d Cir. 2014), which we will identify only where the court’s

ruling rests “on an erroneous view of the law or on a clearly erroneous assessment of the

evidence,” or “cannot be located within the range of permissible decisions,” United States

v. Borden, 564 F.3d 100, 104 (2d Cir. 2009) (internal quotation marks omitted). In so

doing, we assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

       In evaluating a motion under § 3582(c)(2), a district court must follow a two-step

framework, considering (1) whether a defendant is eligible for relief, and (2) “whether

the authorized reduction is warranted, either in whole or in part, according to the factors

set forth in § 3553(a).” Dillon v. United States, 560 U.S. 817, 826–27 (2010). The

Supreme Court has made clear that a determination at the second step is within a district

court’s “discretion” and that whether to reduce an eligible defendant’s sentence is to be

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decided “under the particular circumstances of the case.” Id. at 827; see United States v.

Borden, 564 F.3d at 104. The district court must nevertheless present “at least some

minimal statement of reasons for [its] action” to allow for meaningful appellate review.

United States v. Christie, 736 F.3d 191, 197 (2d Cir. 2013).

       The parties agree that Bishop is eligible for a reduction under U.S.S.G. § 2D1.1(c).

The district court denied Bishop a reduction because of (1) “the nature of the offense”

and Bishop’s role as “a major importer of drugs,” (2) “the significant reduction” already

granted Bishop for cooperation pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) at

his initial sentencing,1 and (3) its consideration of “all the factors under 18 U.S.C.

§ 3553(a).” J.A. 111. While the district court thus never explicitly stated that Bishop

was eligible for a reduction, it implicitly did so by reaching the second step of the

sentence-reduction framework and providing a statement of reasons for its denial. See

generally Dillon v. United States, 560 U.S. at 826–27 (noting that second step involves

analysis of § 3553(a) factors and circumstances of case). Accordingly, we identify no

abuse of discretion.

       In urging otherwise, Bishop argues that the district court relied on a “clearly

erroneous assessment of the evidence; specifically, an incorrectly calculated guideline

range,” Appellant’s Br. 21, because, in its denial order, it stated “that the [Presentence

Investigation Report (“PSR”)] originally calculated the aggregate range as 248 to 295


1
  Bishop’s initial 108-month sentence was below both his original Guidelines range of
248 to 295 months’ imprisonment, and the parties’ 11(c)(1)(C) range of 195 to 228
months. It remains below the amended applicable Guideline range of 168 to 195
months.

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months,” id. But that is precisely the range identified by the original PSR, if not the

parties’ 11(c)(1)(C) agreement.    See generally United States v. Leonard, 844 F.3d 102,

104–05 (2d Cir. 2016) (concluding that applicable Guidelines range was one calculated

by court, not that agreed to by parties in 11(c)(1)(C) agreement). Moreover, while the

district court referenced this range in its order denying Bishop’s motion, it clearly did not

rely upon the PSR-recommended Guidelines range in denying the motion; instead, it

looked to “the nature of the offense and the significant reduction already granted for

cooperation” as well as “the factors under 18 U.S.C. § 3553(a).” J.A. 111. Insofar as

Bishop argues that the district court incorrectly calculated the applicable Guidelines

range for purposes of evaluating his eligibility under U.S.S.G. § 1B1.10(a), we need not

pursue the matter, as any error would be harmless because the district court clearly

recognized that Bishop was eligible for a reduction.2

       Bishop next argues that the district court abused its discretion in affording

insufficient weight to his substantial assistance. But the Guidelines policy statement

governing § 3582(c)(2) motions specifically states that, when a defendant has originally

received a below-Guidelines sentence due to a government motion reflecting his

substantial assistance, “a reduction comparably less than the amended guideline range . . .

may be appropriate.” U.S.S.G. § 1B1.10(b)(2)(B) (emphasis added). The court was



2
  The parties’ 11(c)(1)(C) range of 195 to 228 months’ imprisonment assumed that
Bishop would receive credit for acceptance of responsibility, which the PSR did not
recommend. The government’s § 5K1.1 letter requested the equivalent of a 5-level
downward adjustment from the agreed-on range based on substantial cooperation, with a
sentence at the 108-month bottom of the so-adjusted range.

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thus under no obligation to grant a comparable reduction on Bishop’s § 3582(c)(2)

motion.

       Finally, Bishop’s argument that the district court insufficiently considered his lack

of prior criminal history and disciplinary infractions fails. Section 3582 and U.S.S.G.

§ 1B1.10 place the weight to be accorded such factors firmly within the discretion of the

district court. Moreover, the commentary to § 1B1.10 explicitly states that “[t]he court

may consider post-sentencing conduct” in determining whether to grant a reduction,

U.S.S.G. § 1B1.10 cmt. n.1(B)(iii) (emphasis added); it is not required to do so.

       We have considered Bishop’s other arguments and conclude that they are without

merit. Accordingly, we AFFIRM the order of the district court.

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




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