United States v. Paredes (Velasquez)

09-3776-cr USA v. Paredes (Velasquez) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 23 rd day of September, two thousand and 5 ten. 6 7 PRESENT: ROSEMARY S. POOLER, 8 RICHARD C. WESLEY, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 12 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 -v.- 09-3776-cr 19 20 RICARDO PAREDES, also known as RICHIE, 21 ANGEL PAULINO, 22 23 Defendants, 24 25 JOSE VELASQUEZ, also known as E. 26 HERNANDEZ-MANGUAL, also known as MILCO DIAZ, 27 also known as ROLANDO DIAZ, also known as 28 ALBERTO VELEZ, also known as ORLANDO DIAZ, 29 30 Defendant-Appellant. 31 32 33 1 FOR APPELLANT: SALLY WASSERMAN, Law Office of Sally 2 Wasserman, Esq., New York, NY. 3 4 FOR APPELLEE: STEPHEN J. MEYER, Assistant United States 5 Attorney, of counsel, for Loretta E. 6 Lynch, United States Attorney for the 7 Eastern District of New York, New York, 8 NY. 9 10 Appeal from the United States District Court for the 11 Eastern District of New York (Cogan, J.). 12 13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 14 AND DECREED that the judgment of the District Court be 15 AFFIRMED. 16 Jose Velasquez (“Appellant”) appeals from a judgment of 17 the United States District Court for the Eastern District of 18 New York (Cogan, J.), entered on September 3, 2009 and 19 sentencing him to 160 months imprisonment followed by five 20 years of supervised release. We assume the parties’ 21 familiarity with the underlying facts, the procedural 22 history, and the issues presented for review. 23 We review the sentence imposed by the District Court 24 for both substantive and procedural reasonableness. United 25 States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en 26 banc). “Reasonableness review is akin to review for abuse 27 of discretion, under which we consider whether the 28 sentencing judge exceeded the bounds of allowable 2 1 discretion, committed an error of law in the course of 2 exercising discretion, or made a clearly erroneous finding 3 of fact.” United States v. Williams, 475 F.3d 468, 474 (2d 4 Cir. 2007) (internal quotation marks and alterations 5 omitted). 6 Appellant argues that his sentence was procedurally 7 unreasonable because the District Court allowed Appellant’s 8 criminal history to “overshadow” the other 18 U.S.C. 9 § 3553(a) factors. We disagree. There is a “strong 10 presumption that the District Court faithfully performed its 11 statutory obligation to consider the § 3553(a) factors.” 12 United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). 13 Appellant has presented no evidence to rebut this 14 presumption. Moreover, upon reviewing the record, we 15 conclude that the District Court did, in fact, fully 16 consider the statutory factors and did not afford undue 17 weight to Appellant’s criminal history. Indeed, the 18 District Court explicitly stated that it considered all the 19 factors in 3353(a) and it discussed several of them at 20 length at the sentencing proceeding. Accordingly, we 21 conclude that the District Court committed no procedural 22 error. 3 1 Appellant next argues that his sentence was 2 substantively unreasonable. Substantive review of a 3 sentence is akin to “consideration of a motion for a new 4 criminal jury trial, which should be granted only when the 5 jury's verdict was ‘manifestly unjust,’ and to the 6 determination of intentional torts by state actors, which 7 should be found only if the alleged tort ‘shocks the 8 conscience.’” United States v. Dorvee, --- F.3d ----, 2010 9 WL 3023799, at *7 (2d Cir. Aug. 4, 2010) (citing United 10 States v. Rigas, 583 F.3d 108, 122-23 (2d Cir. 2009)). 11 Here, the District Court explained in detail its reasons for 12 imposing the sentence, considered at length the mitigating 13 factors Appellant presented, and ultimately imposed a below- 14 guideline sentence. For these reasons, we conclude that the 15 sentence was not substantively unreasonable. 16 For the foregoing reasons, the judgment of the District 17 Court is hereby AFFIRMED. 18 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 4