20-625 United States v. Moyhernandez United States Court of Appeals for the Second Circuit AUGUST TERM 2020 No. 20-625 UNITED STATES OF AMERICA, Appellee, v. JOSE MOYHERNANDEZ, AKA YINDO, Defendant-Appellant. ARGUED: MARCH 19, 2021 DECIDED: JULY 15, 2021 Before: JACOBS, POOLER, PARK, Circuit Judges. Jose Moyhernandez appeals from an order of the United States District Court for the Southern District of New York (Preska, J.) denying a motion for reduced sentence under § 404 of the First Step Act. On appeal, Moyhernandez argues that the district court (1) was required to consider the factors set forth in 18 U.S.C. § 3553(a) and failed to do so, (2) abused its discretion in declining to reduce his 360-month prison sentence and his ten-year term of supervised release, and (3) misapprehended his eligibility for a sentence reduction and its own authority to reduce it. Affirmed. Judge Pooler dissents in a separate opinion. __________________ KEDAR BHATIA (Anna M. Skotko, on the brief), for AUDREY STRAUSS, United States Attorney for the Southern District of New York, New York, NY, for Appellee United States of America. DARRELL FIELDS, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant Jose Moyhernandez. DENNIS JACOBS, Circuit Judge: Jose Moyhernandez appeals from an order of the United States District Court for the Southern District of New York (Preska, J.) denying a motion for reduced sentence under § 404 of the First Step Act. Moyhernandez was convicted in 2000 on charges including conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base. Based on Moyhernandez’s status as a career offender, the district court (Mukasey, J.) sentenced Moyhernandez to 360 months’ imprisonment--the bottom of his Guidelines range--plus a ten-year term of supervised release. 2 In 2019, Moyhernandez moved for a sentence reduction pursuant to § 404 of the First Step Act, which empowers district courts to apply retroactively the reduced penalties for crack-cocaine offenses set out in the Fair Sentencing Act of 2010. Judge Preska concluded that Moyhernandez was eligible for a reduced sentence but exercised her discretion to withhold a reduction. The district court reasoned that Moyhernandez remained a career offender and had a lengthy criminal history. As to the term of supervised release, the district court added that Moyhernandez will be deported on release from custody. In reaching its decision, the district court stated that it was not required to consider the 18 U.S.C. § 3553(a) factors. We agree, and conclude that consideration of the § 3553(a) factors is not required on review of a motion brought pursuant to § 404 of the First Step Act--though it is certainly permitted. We further conclude that the district court did not abuse its discretion in declining to reduce Moyhernandez’s sentence and properly understood both Moyhernandez’s eligibility for a sentence reduction and its own authority to grant one. Accordingly, we affirm. 3 BACKGROUND A. Conviction and Sentencing In 1996, Jose Moyhernandez sold (to a confidential informant) about 90 grams of crack cocaine and a semi-automatic …
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