10-1861-cr
United States v. Warren
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 April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-1861-cr
17
18 LARRY WARREN, also known as
19 “Dad4Real4u,”
20 Defendant-Appellant.
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22
23 FOR APPELLANT: Darrell B. Fields, Federal Defenders of
24 New York, Inc., Appeals Bureau, New York,
25 New York.
26
27 FOR APPELLEE: Brian A. Jacobs, Assistant United States
28 Attorney (Katherine Polk Failla,
29 Assistant United States Attorney, Of
1 Counsel), for Preet Bharara, United
2 States Attorney for the Southern District
3 of New York.
4
5 Appeal from a judgment of conviction in the United
6 States District Court for the Southern District of New York
7 (Sullivan, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 Defendant-Appellant Larry Warren (“Warren”) appeals
14 from a May 11, 2010 judgment of the United States District
15 Court for the Southern District of New York (Sullivan, J.)
16 entered following a plea of guilty to using a facility and
17 means of interstate commerce to attempt to persuade, induce,
18 entice, and coerce individuals under 18 years of age to
19 engage in sexual activity, in violation of 18 U.S.C.
20 § 2422(b). The district court sentenced Warren principally
21 to 240 months’ imprisonment--five months above the U.S.
22 Sentencing Guidelines (“Guidelines”) range. Warren’s sole
23 challenge is to the substantive reasonableness of the
24 sentence. We assume the parties’ familiarity with the
25 underlying facts, the procedural history, and the issues
26 presented for review.
27
28 We review the substantive reasonableness of a sentence
29 under an abuse-of-discretion standard. Gall v. United
30 States, 552 U.S. 38, 51 (2007). In applying that standard,
31 we must “take into account the totality of the
32 circumstances, giving due deference to the sentencing
33 judge’s exercise of discretion, and bearing in mind the
34 institutional advantages of district courts.” United States
35 v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (in banc). We
36 cannot “substitute our own judgment for the district court’s
37 on the question of what is sufficient to meet the § 3553(a)
38 considerations in any particular case,” and should “set
39 aside a district court’s substantive determination only in
40 exceptional cases where the trial court’s decision ‘cannot
41 be located within the range of permissible decisions.’” Id.
42 at 189 (quoting United States v. Rigas, 490 F.3d 208, 238
43 (2d Cir. 2007)); see also United States v. Fernandez, 443
44 F.3d 19, 27 (2d Cir. 2006) (“Reasonableness review does not
2
1 entail the substitution of our judgment for that of the
2 sentencing judge.”). The substantive unreasonableness
3 standard “provide[s] a backstop for those few cases that,
4 although procedurally correct, would nonetheless damage the
5 administration of justice because the sentence imposed was
6 shockingly high, shockingly low, or otherwise unsupportable
7 as a matter of law.” United States v. Rigas, 583 F.3d 108,
8 123 (2d Cir. 2009).
9
10 After considering the required statutory factors, see
11 18 U.S.C. § 3553(a), the district court concluded that an
12 above-Guidelines sentence was warranted due to Warren’s
13 callous disregard for the well-being of his intended
14 victims, a 13-year-old girl and a 9-year-old girl. Most
15 importantly, during the sentencing proceeding, the district
16 court stated that incapacitation of this defendant, together
17 with general deterrence, were the motivating factors behind
18 the above-Guidelines sentence. In any event, the sentence
19 exceeded by only five months the high-end of the Guidelines
20 range that Warren conceded was reasonable in his plea
21 agreement. On this record, we do not deem this one of the
22 “exceptional cases where the trial court’s decision cannot
23 be located within the range of permissible decisions.”
24 Cavera, 550 F.3d at 189 (internal quotation marks omitted).
25 Thus, we reject the claim that the sentence is substantively
26 unreasonable.
27
28 We have considered Warren’s remaining arguments and
29 find them to be without merit. For the foregoing reasons,
30 the judgment of conviction is AFFIRMED.
31
32
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
35
3