United States v. David Z. Simpson

695 F. App'x 17

Opinion

SUMMARY ORDER

David Z. Simpson appeals from an order of the United States District Court for the Eastern District of New York (Johnson, J.) denying Simpson’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing Guidelines, which retroactively lowered the base offense levels applicable to many drug crimes. This case now returns to us from our prior remand, pursuant to the procedures laid out in United States v. Jacob son, 15 F.3d 19, 22 (2d Cir. 1994), to the district court. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

As explained in our prior order, United States v. Simpson, 678 Fed.Appx. 53 (2d Cir. 2017), in adjudicating the merits of a § 3582(c)(2) motion a district court may consider the sentencing factors set forth in 18 U.S.C. § 3553(a), public safety concerns, and the defendant’s post-sentencing conduct. See 18 U.S.C. § 3582(c)(2); U.S. Sentencing Guidelines § 1B1.10, app. n.1(B)(iii). We review the district court’s weighing of these factors for abuse of discretion. United States v. Rivera, 662 F.3d 166, 170 (2d Cir. 2011).

On Jacobson remand, the district court clarified that the decision it reached denying Simpson’s § 3582(c)(2) motion was based on its original analysis of the § 3553(a) factors at sentencing, as well as Simpson’s disciplinary record while incarcerated. Though the district court’s clarification order on remand does include a discussion of that court’s skepticism about the credibility of elements of Simpson’s testimony, the district court also made clear that the relevance of this credibility judgment was that it undermined Simpson’s efforts to explain away the disciplinary infractions that were apparent from his record. Because the defendant’s post-sentencing conduct is a relevant consideration in evaluating a § 3582(c)(2) motion, we find no error or abuse of discretion in the district court’s ultimate decision to deny Simpson’s motion in part on that basis.

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■ We have considered all of Simpson’s remaining arguments and find them without merit. Accordingly, the judgment of the district court is AFFIRMED.