UNITED STATES of America, Appellee, v. Horace STEWART, Defendant-Appellant, 367 F. App'x 201

SUMMARY ORDER Defendant-appellant Horace Stewart appeals from the judgment of the United States District Court for the Eastern District of New York (Johnson, J.) denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). This Court reviews a district court’s decision to modify or maintain a sentence under 18 U.S.C. § 3582(c)(2) under an abuse of discretion standard. United States v. Borden, 564 F.3d 100, 101 (2d Cir.2009). We assume the parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.

For the following reasons, we affirm the district court’s judgment. When presented with a § 3582(c)(2) motion, the district court first must consider whether the defendant is eligible for a reduction by calculating the Guidelines range that would have been applicable had the amended Guidelines been in place at the time the defendant originally was sentenced. See U.S.S.G. § lB1.10(b)(l). If the defendant is eligible, the district court then may reduce the sentence “after considering the factors set forth in

section 3553(

a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(2). Here, the district court determined that Stewart was eligible for a sentence reduction, but it declined to grant his

section 3582(c)(2) motion. Stewart contends that this decision was an abuse of discretion for two main reasons: (1) the court misasr sessed the evidence of his institutional conduct; and (2) the court double-counted his criminal history. Stewart’s arguments are without merit. First, Stewart concedes that the institutional conduct of an inmate is relevant to a consideration of the

section 3553(

a) factors on resentencing. See U.S.S.G. § IB 1.10, App. Note l(B)(iii) (“The court may consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment in determining ... [wjhether a reduction in the defendant’s term of imprisonment is warranted.... ”). Moreover, a district court is not prohibited from considering a defendant’s record in evaluating a motion for resen-tencing. To the contrary, a court is “well within its authority” in denying a resen-tencing motion on the basis of a defendant’s “extensive criminal history.” Borden, 564 F.3d at 104.

The district court explained that its conclusion was “[bjased upon submissions of counsel and oral argument, based upon the unenviable record of Mr. Stewart, based upon the fact that Mr. Stewart is an illegal alien and taking into consideration all the factors in 3553(a).... ” The undisputed evidence before the court provided amply basis for the court to conclude that Stewart is a recidivist, and that the previously imposed sentence was both appropriate and necessary to protect the public from further crimes. See 18 U.S.C. 3553(a)(1), (2)(C). Accordingly, the judgment of the district court is AFFIRMED.