United States of America v. Ariel Javier

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3350
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UNITED STATES OF AMERICA
v.
ARIEL JAVIER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-05-cr-00139-001)
District Judge: Honorable Robert B. Kugler
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.
(Filed: July 24, 2009)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Ariel Javier appeals from the District Court’s order granting his motion for
modification of sentence under 18 U.S.C. § 3582(c)(2) and reducing his sentence to 136
months of imprisonment. We will affirm.

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I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On February 15, 2006, Javier pleaded guilty to a two-count superseding indictment
charging him with one count of intent to distribute more than fifty grams of cocaine base,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and with one count of conspiracy to
possess with intent to distribute more than fifty grams of cocaine base, in violation of 21
U.S.C. § 846. Each count carried a mandatory minimum term of imprisonment of not less
than ten years and a maximum term of life imprisonment.
The United States Probation Office prepared a Presentence Investigation Report
using the March 2006 edition of the United States Sentencing Guidelines. The Probation
Office calculated Javier’s base offense level as 36 under U.S.S.G. § 2D1.1 and
recommended no adjustments. The resulting total offense level of 36, combined with
Javier’s criminal history category of II, yielded a proposed Guidelines range of 210 to 260
months of imprisonment.
At a sentencing hearing held on July 19, 2006, the District Court granted Javier a
two-level reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility and a one-
level reduction under U.S.S.G. § 3E1.1(b) for timely notification of intent to plead guilty.
Consequently, the District Court lowered Javier’s total offense level to 33, which resulted

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in an advisory Guidelines range of 151 to 188 months. After hearing the parties’
arguments and thoroughly reviewing the sentencing factors set forth in 18 U.S.C.
§ 3553(a), the District Court sentenced Javier to 170 months of imprisonment on each
count, to be served concurrently. Javier did not appeal.
Approximately two years later, on June 13, 2008, Javier filed a motion for
modification of sentence under § 3582(c)(2), based on Amendment 706 to the Guidelines,
which reduced the base offense level for most crack cocaine offenses by two levels. He
requested that the District Court reduce his total offense level to 31, lower his Guidelines
range to 121 to 151 months, and impose a new sentence at the bottom of that range. The
Probation Office agreed that Javier was eligible for a sentence reduction and that his
recalculated advisory Guidelines range would be 121 to 151 months, but did not make a
recommendation as to whether the District Court should grant his motion.
On July 23, 2008, the District Court granted Javier’s motion and, without
conducting a hearing, reduced his sentence to 136 months, the midpoint of the lowered
Guidelines range. Javier filed a timely notice of appeal, challenging his sentence.
II.
On appeal, Javier argues that the District Court abused its discretion by failing to
hold a hearing and by failing to provide an adequate explanation for the sentence that it
imposed on him. He also contends that his sentence is substantively unreasonable. The

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Government disputes all these points, and in addition contends that we do not have
jurisdiction to review the District Court’s order.
As an initial matter, the Government’s argument that we lack jurisdiction here is
foreclosed by our decision in United States v. Styer, No. 08-2951, --- F.3d ----, 2009 WL
766494, at *1 n.2 (3d Cir. Mar. 25, 2009). Styer also requires us to reject Javier’s
argument that he was entitled to a hearing. See id. at *2 (“How a court decides to
consider a § 3582(c)(2) motion is a matter of discretion.” (citing Tidwell v. United States,
178 F.3d 946, 949 (7th Cir. 1999))). The District Court here, like that in Styer,
“sentenced [Javier] in the first instance, was familiar with the facts of the case and [thus
was] in the best position to determine whether a hearing was warranted.” Id. On this
record, we do not believe that the District Court abused its discretion in denying Javier’s
request for a hearing.
We also reject Javier’s argument that the District Court abused its discretion by
failing to adequately explain its decision to reduce his sentence to 136 months. While the
District Court did not specifically reference the § 3553(a) factors in reducing Javier’s
sentence, it undertook a comprehensive analysis of the factors in imposing his original
sentence. And it was not required to consider his post-conviction conduct in determining
the extent of the reduction. See U.S.S.G. § 1B1.10 cmt. n.1(b)(iii) (“The court may
consider post-sentencing conduct of the defendant that occurred after imposition of the
original term of imprisonment in determining: (I) Whether a reduction in the defendant’s

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term of imprisonment is warranted; and (II) the extent of such reduction . . . .” (emphasis
added)); see also Styer, 2009 WL 766494, at *2 n.4.
Finally, we reject Javier’s contention that his sentence is substantively
unreasonable. Because his sentence “falls within a broad range of possible sentences that
can be considered in light of the § 3553(a) factors,” United States v. Wise, 515 F.3d 207,
218 (3d Cir. 2008), and “‘the record as a whole reflects rational and meaningful
consideration’” of the § 3553(a) factors, United States v. Tomko, 562 F.3d 558, 568 (3d
Cir. 2009) (en banc) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007)),
we will not second guess the District Court’s sentencing decision.
III.
For the foregoing reasons, we will affirm the District Court’s order.

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