UNITED STATES OF AMERICA v. EDUARDO VERDUZCO

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United States Court of Appeals, Tenth Circuit.

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDUARDO VERDUZCO, Defendant - Appellant.

No. 16-6326

    Decided: February 10, 2017

Before LUCERO, O'BRIEN, and MORITZ, Circuit Judges.

ORDER AND JUDGMENT*

Eduardo Verduzco appeals the district court's denial of his motion for a sentence reduction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Verduzco pled guilty to maintaining a place for the purpose of distributing methamphetamine. He was sentenced to 240 months' imprisonment. Following the passage of Guidelines Amendment 782, U.S.S.G. Manual, app. C, amend. 782, Verduzco filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court concluded that Verduzco was eligible for a reduction but denied the motion based on his extensive disciplinary problems in prison. Verduzco now appeals.

“We review for an abuse of discretion a district court's decision to deny a reduction of a sentence under 18 U.S.C. § 3582(c)(2).” United States v. Osborn, 679 F.3d 1193, 1195 (10th Cir. 2012). A district court may modify the sentence of a defendant whose Guidelines range has been lowered by the Sentencing Commission “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2). “[A]n ameliorative amendment to the Guidelines in no way creates a right to a sentence reduction.” Osborn, 679 F.3d at 1196 (emphasis omitted).

We cannot say that the district court abused its discretion in denying Verduzco's motion for a sentence reduction. District courts may consider post-sentencing conduct in deciding whether to reduce a sentence. U.S.S.G. § 1B1.10, app. n.1(B)(iii). Accordingly, the court acted well within its discretion in looking to Verduzco's record of twenty-six disciplinary infractions during his incarceration, including multiple instances of assault, fighting, and possession of a dangerous weapon. See Osborn, 679 F.3d at 1196 (stating that “the presence of prison disciplinary reports on [a defendant's] record” is “a proper basis for denying a motion under § 3582(c)(2)”).

AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge

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