Submitted: May 31, 2016
from United States District Court for the District of North
Dakota - Fargo
SMITH, BEAM, and KELLY, Circuit Judges.
Javier Granados appeals the district
court's denial of his motion for a two-level
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
based on Amendment 782 to the Guidelines. We affirm.
March 27, 1996, a jury found Granados guilty of 11 counts
related to conspiracy and distribution of cocaine and heroin,
employing individuals under the age of 18 to distribute
cocaine, distribution of a controlled substance to a person
under the age of 21, and knowingly using and carrying
firearms during and in relation to a drug trafficking crime.
Granados was sentenced to 288 months' imprisonment on the
drug-conspiracy charges and a consecutive 60 months'
imprisonment for using a firearm in connection with the drug
offenses. On appeal, we reversed and remanded for specific
findings on drug quantity. United States v.
Granados, 117 F.3d 1089 (8th Cir. 1997). On remand, the
district court made the necessary findings and reduced the
drug sentence by 12 months for a total sentence of 336
November 1, 2014, Amendment 782 to the United States
Sentencing Guidelines (U.S.S.G.) took effect. This amendment,
colloquially referred to as the 'Drugs Minus Two'
Amendment, lowered by two the offense level based on drug
quantity under U.S.S.G. §§ 2D1.1 and 2D1.11 and
made this two-level reduction retroactive." United
States v. Osten, 639 F. App'x 393, 393 (8th Cir.
2016) (unpublished per curiam) (citing U.S.S.G. §
19, 2015, Granados moved for a two-level reduction pursuant
to 18 U.S.C. § 3582(c)(2) based on Amendment 782. The
government opposed any reduction, relying upon case-related
considerations. The district court found that Granados
qualified for a sentence reduction under § 3582(c)(2)
but denied Granados's motion, concluding that a sentence
reduction would be inconsistent with the Sentencing
Commission's policy statements and the factors set forth
in 18 U.S.C. § 3553(a).
the § 3553(a) factors, the district court noted that
"[t]he drug trafficking operation involved a large
quantity of drugs and violence" as evidenced by Granados
"intimidat[ing] and threaten[ing] others, both verbally
and with a firearm," and "assault[ing] several
individuals at different times and direct[ing] others to
threaten and assault others." The court identified an
instance in which "Granados recruited another individual
from Chicago to 'hit' . . . an individual who had
gotten into a fight with Granados on a prior occasion,"
paid "$2,500 for the 'hit,'" and
"provided a firearm for the shooting." The court
additionally noted that Granados had "directed the
torching of a vehicle owned by an individual who had
contacted law enforcement" and cited a witness's
testimony "that firearms were utilized both to protect
the drug distribution ring and were to be used against law
enforcement, if necessary."
court acknowledged the "several achievements and
accomplishments [that Granados] made while
incarcerated," stated its belief "that Granados has
made a concerted effort to improve his life and will be a
productive member of society upon his release if he continues
on the same path," and recognized that Granados is a
different person today than he was at his original
sentencing. The court nonetheless concluded that "[i]t
is . . . clear that Granados is not one of the nonviolent
offenders contemplated by the Sentencing Commission when it
approved the Amendment. He is not one of the people the
Department of Justice had in mind when supporting the
Amendment's retroactivity." The court determined
that "afford[ing] Granados relief would be inconsistent
with the policy statements of the Sentencing Commission as
well as the sentencing factors enumerated by Congress. The
nature and circumstances of this case and public safety
considerations preclude this court from granting a sentence
appeal, Granados argues that the district court erred in
denying his motion for a sentence reduction pursuant to
§ 3582(c)(2) based on Amendment 782 because the court
considered the facts and circumstances of the drug conspiracy
at the original sentencing and on remand from this court,
twice sentencing Granados within his then-applicable
Guidelines. According to Granados, the district court gave
considerable weight to improper factors and failed to
consider important factors: (1) the district court cited a
specific allegation of violence-the alleged
"hit"-that was rejected by the original sentencing
court, and (2) the district court failed to consider
Granados's positive post-sentencing accomplishments and
path toward a productive future.
defendant is not automatically entitled to a sentencing
reduction pursuant to § 3582(c)(2). Osten, 639
F. App'x at 394 (citing United States v. Long,
757 F.3d 762, 764 (8th Cir. 2014)). Instead, §
3582(c)(2) "gives the district court discretion to
reduce a defendant's sentence if his sentencing range has
subsequently been lowered and the reduction is consistent
with the § 3553(a) factors and applicable policy
statements issued by the Sentencing Commission."
Id. (citing 18 U.S.C. § 3582(c)(2)). We review
a district court's denial of a sentence reduction for an
abuse of discretion. Id.
it is undisputed that Granados is eligible for the reduction,
as the district court determined. See Dillon v. United
States, 560 U.S. 817, 827 (2010) ("At step one,
§ 3582(c)(2) requires the court to follow the
Commission's instructions in § 1B1.10 to determine
the prisoner's eligibility for a sentence modification
and the extent of the reduction authorized."). Both
parties agree that reducing the ...