United States v. Jose Avalos Banderas , 858 F.3d 1147 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1517
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Jose Manuel Avalos Banderas, also known as Jose Avalos, also known as Gallo,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: January 9, 2017
Filed: June 6, 2017
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Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.
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COLLOTON, Circuit Judge.
In 2010, Jose Banderas was convicted of conspiracy to distribute and to possess
with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841 and 846.
At sentencing, the district court1 adjusted the advisory guideline range upward based
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
on obstruction of justice, see USSG § 3C1.1, because Banderas made several threats
to prospective witnesses. The court then sentenced Banderas to the top of the
advisory range of 292 to 365 months’ imprisonment. The court explained that he “is
a dangerous individual and will harm someone – and holds potential to harm someone
if he is not incapacitated for a very long time, and that is in form my sentence, among
other things.” Banderas appealed, and we affirmed. United States v. Banderas, 411
F. App’x 932 (8th Cir. 2011) (per curiam).
In 2016, Banderas moved to reduce his sentence under 18 U.S.C. § 3582(c)
based on Amendment 782 to the sentencing guidelines. The amendment reduced by
two levels the offense levels assigned to the drug quantities that trigger statutory
mandatory minimum penalties incorporated in USSG § 2D1.1. The effect in this case
was to reduce Banderas’s total offense level from 38 to 36, resulting in an amended
guideline range of 235 to 293 months’ imprisonment.
Banderas urged the district court to impose a sentence of 235 months, citing
his alleged post-sentencing rehabilitation, his age, and his status as a Mexican citizen
who is likely to be removed after his sentence is served. The government
recommended a sentence at the top of the amended range because of Banderas’s
violent history and the danger he presents to society.
The district court reduced Banderas’s sentence to 293 months, the top of the
amended range, explaining that Banderas “is potentially a very dangerous person.”
Banderas appeals, arguing that the district court abused its discretion by not reducing
the sentence further.
Under § 3582(c)(2), a defendant may move for a reduced sentence if he was
sentenced based on a “sentencing range that has subsequently been lowered . . . if
such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” The relevant policy statement, USSG § 1B1.10, sets forth
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factors for consideration in determining the appropriateness and extent of a reduction
under § 3582(c)(2). The policy statement and accompanying commentary direct the
court to consider the factors set forth in § 3553(a) and “the nature and seriousness of
the danger to any person or the community that may be posed by a reduction in the
defendant’s term of imprisonment.” USSG § 1B1.10, comment. (n.1(B)(i) & (ii)).
The commentary also states that the court “may consider post-sentencing conduct of
the defendant that occurred after imposition of the term of imprisonment.” Id. at
comment. (n.1(B)(iii)). We review a district court’s reduction under § 3582(c)(2) for
abuse of discretion. United States v. Denton, 821 F.3d 1012, 1013 (8th Cir. 2016).
Both Banderas’s original sentence and amended sentence were imposed at the
top of the guideline range. A court generally acts within its discretion by imposing
an amended sentence that is “in proportion to the initial sentence.” United States v.
Powers, 828 F.3d 731, 735 (8th Cir. 2016) (per curiam).
Banderas complains, however, that the court abused its discretion by
considering public safety issues that were already taken into account in establishing
the guideline range. The guidelines refute this contention. “In determining the
sentence to impose within the guideline range, . . . the court may consider, without
limitation, any information concerning the background, character and conduct of the
defendant, unless otherwise prohibited by law.” USSG § 1B1.4. Thus, the court
properly may consider factors that determine the guideline range in deciding where
within the range to sentence a defendant. United States v. Cruzado-Laureano, 527
F.3d 231, 236-37 (1st Cir. 2008).
Banderas argues that the court gave too much weight to his prior convictions
and too little weight to his citizenship status, age, and efforts at rehabilitation. The
district court properly considered Banderas’s criminal history and the danger that he
would pose to the community. USSG § 1B1.10, comment. (n.1(B)(ii)). Banderas’s
threats to three trial witnesses and his prior convictions, which involved threatening
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to kill his girlfriend, holding her captive, and physically assaulting and strangling her,
were relevant to determining where he should be sentenced within the range. The
court reasonably concluded that Banderas was “potentially a very dangerous person”
who should receive a sentence of 293 months.
Banderas also argues that the district court gave too little weight to his post-
sentencing rehabilitation, The court “may” consider such rehabilitation, USSG
§ 1B1.10, comment. (n.1(B)(iii)), but it is not required to reduce a sentence based on
this type of evidence. United States v. Hernandez-Marfil, 825 F.3d 410, 412-13 (8th
Cir. 2016) (per curiam). The court was aware of the other mitigating factors
advanced by Banderas, including his age and citizenship status, but evidently found
them outweighed by aggravating factors. The court’s decision to limit the reduction
as it did was within the permissible range of discretion.
The judgment of the district court is affirmed.
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