Submitted: January 9, 2017
from United States District Court for the District of
Nebraska - Lincoln
COLLOTON, MURPHY, and MELLOY, Circuit Judges.
COLLOTON, Circuit Judge.
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 court adjusted the advisory guideline
range upward based 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)
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.
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.
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.
§ 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 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).
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).
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).
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 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.
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