10-185-cr
United States v. Reynoso
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 15th day of March, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 REENA RAGGI,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-185-cr
17
18 JOSE GONZALES, JR.,
19 Defendant,
20
21 FAUSTO REYNOSO,
22 Defendant-Appellant.*
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24
25 FOR APPELLANT: Laurie S. Hershey, Manhasset, New York.
*
The Clerk of the Court is respectfully directed to amend the official
caption in this action to conform to the caption as set forth above. All
appellate issues related to United States v. Rojas, 10-522-cr have been
adjudicated in a separate order entered today.
1
2 FOR APPELLEE: Bonnie S. Klapper, Susan Corkery,
3 Assistant United States Attorneys,
4 for Loretta E. Lynch, United States
5 Attorney the Eastern District of New
6 York, Brooklyn, New York.
7
8 Appeal from a judgment of the United States District
9 Court for the Eastern District of New York (Amon, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 AFFIRMED.
14
15 Reynoso pleaded guilty (without a plea agreement) to
16 one count of conspiracy to distribute heroin in violation of
17 21 U.S.C. § 846 and three counts of heroin distribution in
18 violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(i).
19 Reynoso was sentenced principally to a below-Guidelines
20 sentence of seventy-five months of incarceration on the
21 conspiracy count and seventy-five months of incarceration on
22 the substantive counts, with the terms of incarceration to
23 run concurrently. Reynoso challenges his sentence, arguing
24 that the district court misapprehended its authority to
25 further reduce his sentence based on the impurity of the
26 heroin. We assume the parties’ familiarity with the
27 underlying facts, the procedural history, and the issues
28 presented for review.
29
30 This court reviews sentences for reasonableness, which
31 “amounts to [a deferential] review for abuse of discretion.”
32 United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008)
33 (in banc); see also Gall v. United States, 552 U.S. 38, 41
34 (2007) (“[C]ourts of appeals must review all sentences--
35 whether inside, just outside, or significantly outside the
36 Guidelines range--under a deferential abuse-of-discretion
37 standard.”). A review of the record reveals that the
38 district court properly calculated the Guidelines range and
39 treated the Guidelines as advisory. See United States v.
40 Preacely, 628 F.3d 72, 79 (2d Cir. 2010).
41
42 Evidence obtained pursuant to a court-ordered wiretap
43 shows that Reynoso complained about the poor quality of the
44 heroin he was able to obtain and that he sought higher
45 purity drugs. Given these facts, the district court
46 concluded that Reynoso’s contention that impurity should
47 serve as a mitigating factor was unpersuasive. “Trafficking
2
1 in controlled substances . . . of unusually high purity may
2 warrant” an above-Guidelines sentence. U.S. Sentencing
3 Guidelines § 2D1.1, Application Note 9. We need not decide
4 whether the converse is true. The district court was within
5 its discretion in declining to further reduce Reynoso’s
6 sentence based on low drug purity. The record makes clear
7 that the district judge “faithfully discharged her duty to
8 consider the statutory factors” in sentencing Reynoso and
9 his sentence should be affirmed. United States v. Legros,
10 529 F.3d 470, 478 (2d Cir. 2008) (internal quotation marks
11 omitted).
12
13 Finding no merit in the arguments raised by Reynoso on
14 appeal, we hereby AFFIRM the judgment of the district court.
15
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
20
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