United States v. Fernandez

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2005

(Argued: October 21, 2005 Decided: April 3, 2006
Errata Filed: June 1, 2006)
Docket No. 05-1596-cr

UNITED STATES OF AMERICA,

Appellee,

v.

MAYRA FERNANDEZ, also known as Frank Morena, also
known as La Jefa,

Defendant-Appellant.

BEFORE : MINER and CABRANES, Circuit Judges, and CURTIN , District Judge.*

Defendant contends that her sentence, imposed by the United States District Court for the

Southern District of New York (Denise Cote, Judge) after her conviction for participation in a

narcotics distribution conspiracy, was unreasonable because the District Court failed to consider

certain arguments made pursuant to the sentencing factors set forth in 18 U.S.C.

§ 3553(a)—concerning her efforts to cooperate with the Government and the disparity between her

sentence and that of a co-conspirator—and because a 151-month period of imprisonment is

unreasonably long in the circumstances presented.

Affirmed.

*
The Honorable John T. Curtin of the United States District Court for the Western District of New York,
sitting by designation.

1
 LANCE CROFFOOT-SUEDE, White & Case LLP, New York, NY, for
Defendant-Appellant.

RAYMOND J. LOHIER, JR ., Assistant United States Attorney (David N.
Kelley, United States Attorney, Harry Sandick, Assistant
United States Attorney, on the brief), United States Attorney’s
Office for the Southern District of New York, New York,
NY, for Appellee.

JOSÉ A. CABRANES, Circuit Judge:

We address here several questions relating to our review of sentences in the post-Booker era,

see United States v. Booker, 543 U.S. 220 (2005), including whether: (1) we possess statutory authority

to review a sentence within the relevant United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”) range for reasonableness; (2) a sentence within the relevant Guidelines range is

entitled to a presumption of reasonableness; (3) the duty to consider the sentencing factors of 18

U.S.C. § 3553(a)1 requires a sentencing judge to discuss on the record during the sentencing

1
18 U.S.C . § 3553(a) provides, in pertinent part, as follows:

(a) Factors to be considered in imposing a sentence.— The court shall impose a sentence sufficient,
but n ot gre ater than necessary, to com ply w ith the purpose s set forth in p aragraph (2) of this
subsection. The co urt, in determining the particular senten ce to be imp osed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousne ss of the offense, to prom ote respect for the law, and to
provide just punishment for the offense;

(B) to afford ad equate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed edu cational or vocational training,
med ical care, or other correctional treatment in the most effective m anner;

(3) the kinds of sentences available;

(4) the kind s of sentence and the sentencing range establishe d [in the Sentencing Guidelines;]
...

2
proceeding each of the factors or each argument that a defendant makes relating to those factors; (4)

18 U.S.C. § 3553(a)(6), which obligates sentencing judges to consider unwarranted disparities in

sentencing, applies to differently situated defendants; (5) we may review a sentencing judge’s

decision regarding what, if any, weight to ascribe to any particular argument made pursuant to a

§ 3553(a) factor, when the sentence ultimately imposed is reasonable; (6) a sentencing judge may

take a defendant’s cooperation with authorities into account pursuant to 18 U.S.C. § 3553(a), even

though the Government has not made a motion pursuant to U.S.S.G. § 5K1.1;2 and (7) in the

circumstances presented, defendant’s sentence is unreasonably long.

On March 7, 2003, defendant Mayra Fernandez (“Fernandez”) was convicted by a jury in the

United States District Court for the Southern District of New York (Denise Cote, Judge) of

conspiracy to distribute and to possess with the intent to distribute at least one kilogram of

substances or mixtures containing heroin.3 At the sentencing proceeding on March 17, 2005, Judge

Cote determined that the advisory Guidelines range was 151 to 188 months and sentenced

Fernandez principally to 151 months of imprisonment followed by five years of supervised release.

Fernandez, who does not challenge on appeal her conviction or the calculation of the

(5) any pertinent policy statem ent . . . issued by the Sentencing Commission . . . ;

(6) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

2
U.S.S.G. § 5K1.1 provides, in pertinent part, that “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prosecution of another person who has committed
an offense, the court may d epart from the guidelines.”

3
It is unlawful “to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). When a defendant violates that provision with “1 kilogram or
more of a mixture or substance containing a detectable amount of heroin,” she is subject to a mandatory minimum
sentence of ten years of imprisonment. 21 U.S.C. § 841(b)(1)(A)(i). Pursuant to 21 U.S.C. § 846, “[a]ny person who
attempts or con spires to comm it [the above-described ] offense . . . shall be subject to the same penalties as those
prescribed for the offense .”
3
advisory Guidelines range, contends that the District Court failed to consider certain 18 U.S.C.

§ 3553(a) factors in connection with Fernandez’s efforts to assist authorities and with the fact that

her father, Elias Fernandez (“Elias”), who was a co-conspirator in the charged conspiracy, received a

lesser sentence principally of 135 months of imprisonment. In addition, Fernandez maintains that

the length of her sentence was unreasonable. We find that Fernandez’s arguments lack merit, and

we therefore affirm the judgment of the District Court.

BACKGROUND

Fernandez and Elias conducted negotiations with Joaquin Hernandez, a paid confidential

informant for the Drug Enforcement Administration (“DEA”) who was posing as a drug dealer

with the ability to transport cocaine and heroin from the Dominican Republic to New York. Elias

met with Hernandez virtually every day in July and August 2001. Fernandez, who was introduced to

Hernandez by Elias, met with Hernandez approximately four times in the spring of 2002. At the

first meeting, Hernandez and Elias went to Fernandez’s apartment so that Elias could pick up

heroin he was storing there. At the second meeting, Elias and Hernandez again went to

Fernandez’s apartment so that Elias could pick up heroin, but the heroin to be acquired was found

to be damp. Fernandez brought out approximately 50 to 100 grams of heroin, dried the heroin

using a hair dryer, and gave Elias devices to cut and weigh the heroin. Elias and Fernandez

determined that the heroin was not fit for distribution, and Elias did not complete the contemplated

sale. At the third meeting of Hernandez, Elias, and Fernandez, which was also held at Fernandez’s

apartment, the three discussed a plan whereby Hernandez would travel to the Dominican Republic

and return to New York with two kilograms of heroin and thirty kilograms of cocaine. It was

understood that upon Hernandez’s return, Fernandez would store the drugs in her apartment and

4
would help to distribute them. At a fourth meeting, Hernandez and Fernandez discussed

Fernandez’s drug contacts in Ecuador.

Before Hernandez’s projected smuggling trip to the Dominican Republic, an apparently

unrelated shooting occurred outside of Fernandez’s apartment. The New York City Police

Department (“NYPD”) searched the building and discovered in the hallway outside Fernandez’s

apartment a box containing, inter alia, a metal press, latex gloves with the fingers cut off, and glassine

envelopes, some of which were stamped “Last Chance.” NYPD detectives found similar glassine

envelopes in Fernandez’s bedroom. The following day, a more extensive search of Fernandez’s

apartment was conducted and additional drug paraphernalia, including a digital scale, a dust mask,

and more glassine envelopes stamped “Last Chance” were recovered.

On August 27, 2002, DEA agents arrested Fernandez. A one-count indictment charging her

with participation in a conspiracy to distribute and to possess with intent to distribute one kilogram

or more of heroin in violation of 21 U.S.C. § 846 was filed on October 29, 2002. Trial began on

March 3, 2003, and it ended four days later, on March 7, when the jury returned a guilty verdict

against Fernandez on the sole count of the indictment. In connection with Fernandez’s impending

sentencing, the United States Probation Office prepared a Presentence Investigation Report

(“PSR”), which concluded that under the Guidelines the offense level was 36,4 the criminal history

category was I, and the Guidelines range was 188 to 235 months.

In Fernandez’s sentencing submission, she sought the statutory mandatory minimum

sentence, 120 months, either pursuant to a downward departure within the Guidelines scheme or as

a non-Guidelines sentence. See United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005) (explaining

that a sentencing judge must consider the advisory Guidelines range and determine whether “([i]) to

impose the sentence that would have been imposed under the Guidelines, i.e., a sentence within the
4
The parties subsequently agreed that the offense level should be reduced by two levels because the PSR
miscalculated the amoun t of narcotics involved.
5
applicable Guidelines range or within permissible departure authority, or (ii) to impose a non-

Guidelines sentence”). She claimed that a decreased sentence would be appropriate because she had

provided assistance to the Government and because an unwarranted disparity would otherwise be

created by the fact that Elias, who had pleaded guilty to charges stemming from the same drug

conspiracy, had been sentenced by Judge Harold Baer, Jr. principally to 135 months of

imprisonment. Fernandez also claimed that her culpability was diminished on account of “cultural

factors of physical and sexual abuse” and “mental manipulation and coercion,” Def.’s Sentencing

Mem. at 26, 31, but these arguments, which the Government contended were not proper bases for

leniency here and which the District Court rejected at sentencing, have not been pursued on appeal.

In its sentencing submission, the Government explained that it had first met with Fernandez

concerning potential cooperation in February 2004, nearly a year after her conviction, in the belief

that she had participated in a 2001 robbery that resulted in a homicide and had been a witness to

another homicide. In her initial proffer sessions with the Government, Fernandez admitted to

participating in the conspiracy underlying the instant conviction and to other criminal activity,

including the 2001 robbery and homicide. She provided information that led to the arrest in March

2004 of her co-conspirator in the 2001 robbery, Juan Carlos Vargas. According to the Government,

the information that Fernandez supplied was important, but was not alone enough to support the

arrest of Vargas. Following Vargas’s arrest, the Government claims, Fernandez began to withhold

information relating to her prior criminal activity.

In April 2004, Fernandez threatened to kill another inmate in prison. When prison

authorities conducted an investigation, Fernandez apparently was not entirely forthright in

recounting the circumstances of the threat. The Government then suspended its proffer sessions

with Fernandez, but eventually held one final session in September 2004. At that last session,

Fernandez admitted to certain criminal activity about which she had withheld information in prior
6
sessions, but the Government remained unsatisfied with her characterization of the threat she had

made against the other inmate, as well as of the circumstances that had led to her earlier transfer

between prisons. Consequently, the Government decided not to offer Fernandez a cooperation

agreement.

The Government’s sentencing submission encouraged the District Court not to accord

Fernandez any benefit for her cooperation. Because of her lapses in truthfulness and her erratic

behavior, Fernandez was, according to the Government, “useless as a witness for purposes of

indicting Vargas and other co-conspirators,” and she amounted to a “serious impediment to the

Government’s prosecution.” Gov’t’s Sentencing Mem. at 19. Furthermore, the Government

maintained that in light of Fernandez’s behavior, it was “clear that her rehabilitation has not

progressed to the point where her efforts at cooperation should lead to a reduced sentence.” Id. at

20-21. The Government did not specifically refer to Fernandez’s argument that she should receive a

reduced sentence so as to avoid a disparity with the sentence imposed on Elias.

At sentencing on March 17, 2005, after noting that she had read the sentencing submissions,

Judge Cote asserted that the “principal arguments made by defense counsel in terms of a departure

or nonguideline sentence are cultural factors, physical and sexual abuse suffered by Ms. Fernandez,

mental manipulation, coercion from loved ones and assistance she has provided to the

government.” Tr. of Sentencing Hr’g, Mar. 17, 2005 (“Tr.”), at 4. Judge Cote explained that the

advisory Guidelines range was, at least preliminarily, 151 to 188 months, see note 4, ante, and then

invited the parties to make oral arguments.

In connection with Fernandez’s request for a reduced sentence in recognition of her

cooperation, her counsel explained that “[w]e’re not asking . . . for a [U.S.S.G. §] 5K1.1 letter.”

Tr. at 18. Instead, counsel explained that Fernandez sought either a “downward departure” or a

“nonguideline sentence to a term of 120 months,” the statutory mandatory minimum. Id. at 19. In
7
relation to Fernandez’s efforts to cooperate, counsel specifically argued that “under [18 U.S.C.

§] 3553(a)(1)” the Court could take into account her “newfound respect for the law and her personal

circumstances” and that she would “not need to show the type of cooperation that a normal

cooperator shows” to receive a more lenient sentence. Id.

Judge Cote refused to depart downward or to impose a non-Guideline sentence. She

addressed Fernandez’s cooperation as follows:

I guess I should also address the issue about cooperation. I think it’s fair to
say that it was fitful. Ms. Fernandez, facing mandatory minimum term of
imprisonment and guidelines range above that—I mean, the government was
arguing for a guidelines range at level 36, I believe, and the PSR came in with a
guidelines range at a level 36—decided it was in her interest to try to cooperate.
But she did not do so in a way that suggests to me that it should be used to lighten
her sentence.

I mean, cooperation has many components to it. There is the obvious
component of assisting the government in the prosecution of other wrongdoers,
but I think that’s really only the beginning. Of course there is a significant failure
with respect to that component.

But in terms of sentencing, I think cooperation is important because of
what light it might shed on the character of a defendant, whether it shows the
defendant has recognized the full implications of the choices they made in the past;
whether they have decided to make a clean and full break with that and change their
life in a significant way. On occasion cooperation really is a reflection of a dramatic
change in the person’s life. And that resonates in a way, in all the ways that one
must consider a sentence, including the likelihood of rehabilitation, the necessity for
individual deterrence, the need for additional punishment beyond that already
imposed and suffered by a defendant.

And so the fact that Ms. Fernandez was not able ultimately to follow
through in a full and complete admission about her criminal activities, was not able
to live in an appropriate way within the prison setting, difficult as I’m sure that is,
again, undercuts using that brief exploration of what it was like being a cooperator
as something that should indicate in this case an alteration to a guidelines sentence.

I’m fully aware that I have the power to depart and that I have the duty to
determine what a reasonable sentence is and to consider all the factors under
3553(a). And the sentence I am imposing is based on a consideration of all the
evidence before me, the history of Ms. Fernandez in my courtroom, what I learned
at trial and my consideration of my discretion under the law.

8
Id. at 22-24.

The argument in Fernandez’s sentencing memorandum that she should receive leniency to

avoid a disparity between her sentence and that imposed on Elias was never raised at her sentencing

hearing, despite the fact that, as the record makes clear, both parties were afforded ample

opportunity to make arguments. Judge Cote did not specifically address the disparity argument on

the record.

DISCUSSION

Fernandez contends that the District Court committed procedural error in imposing

sentence and subjected her to unreasonable punishment. According to Fernandez, the District

Court failed to comply with its obligation to consider the sentencing factors outlined in 18 U.S.C.

§ 3553(a), see note 1, ante, because the Court did not lessen her sentence on account of (1) her

cooperation with law enforcement authorities and (2) the disparity between the sentence she was to

receive and that imposed on Elias. Moreover, she contends that, in the circumstances presented, a

sentence including a 151-month term of imprisonment was unreasonably long. We conclude that

Fernandez has failed to show that the District Court’s sentencing procedures were improper or that

the resulting sentence was unreasonable.

I. Our Statutory Authority To Review a Sentence for Reasonableness

As a preliminary matter, we address the source of our authority to review a sentence in

conformity with the Guidelines, which includes any properly applied departures (a “Guidelines

sentence”), for reasonableness.5 Like the Supreme Court in Booker, we have previously assumed

5
The parties did not raise this issue, but we do so nostra sponte because o f our indepe ndent obligation to ensure
that w e have su bject ma tter jurisdiction. See, e.g., Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 274 (2d Cir. 2005).
9
such authority, see, e.g., Crosby, 397 F.3d 103; see also United States v. Cooper, 437 F.3d 324, 328 n.5 (3d

Cir. 2006) (collecting cases that have assumed without expressly deciding that courts of appeals have

jurisdiction to review sentences for reasonableness), but we now specifically locate our authority in

18 U.S.C. § 3742(a),6 which provides, inter alia, for review of sentences “imposed in violation of

law.” 18 U.S.C. § 3742(a)(1). We hold that when a defendant challenges the procedures of his

sentencing proceeding or the reasonableness of the sentence imposed, he effectively claims that the

sentence, whether a Guidelines sentence or a non-Guidelines sentence, was “imposed in violation of

law,” 18 U.S.C. § 3742(a)(1). We therefore have authority to review sentences, whether Guidelines

sentences or non-Guidelines sentences, for reasonableness. See Cooper, 437 F.3d at 327 (“We believe

an unreasonable sentence is ‘imposed in violation of law’ under 18 U.S.C. § 3742(a)(1).”); United

States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006) (“Although the Supreme Court in Booker did

not identify which provision of § 3742(a) provided for appeals for ‘unreasonableness,’ we conclude

that a post-Booker appeal based on the ‘unreasonableness’ of a sentence, whether within or outside

the advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of

law pursuant to § 3742(a)(1).”); United States v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005) (“After

Booker, . . . we will review a defendant’s argument that even a sentence within the advisory guideline

range is ‘unreasonable’ with regard to the factors set forth in 18 U.S.C. § 3553(a), and an

6
18 U.S.C . § 3742(a) provides:

A defendant m ay file a notice of app eal in the d istrict court for re view of an otherwise final sente nce if
the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range . . . ; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
10
unreasonable sentence would be imposed ‘in violation of law’ within the meaning of § 3742(a).”

(citation omitted)).7

II. Standard of Review

The Supreme Court’s landmark holdings in Booker were handed down in two opinions. The

opinion of Justice Stevens addressed the merits of the constitutional challenge to the Guidelines,

concluding that the formerly mandatory nature of the Guidelines violated the Sixth Amendment.

Booker, 543 U.S. at 243-44. The opinion of Justice Breyer set forth the remedy, which consisted of

“sever[ing] and excis[ing]” from the Sentencing Reform Act the provision making the Guidelines

mandatory, 18 U.S.C. § 3553(b)(1), and the provision containing the relevant standards of review on

appeal, 18 U.S.C. § 3742(e). Booker, 543 U.S. at 258-59. Pursuant to the “remedy opinion,” the

now-advisory Guidelines are to be considered, together with the other factors set forth in 18 U.S.C.

§ 3553(a), by judges fashioning sentences. See id. at 261-62. In Crosby, we outlined a procedure for

the implementation of the Booker remedy. See Crosby, 397 F.3d at 113. We explained that a sentence

will satisfy the requirements of Booker and the Sixth Amendment if the sentencing judge (1)

calculates the relevant Guidelines range, including any applicable departure under the Guidelines

system; (2) considers the calculated Guidelines range, along with the other § 3553(a) factors; and (3)

imposes a reasonable sentence. Id.

Accordingly, while we review a sentence for reasonableness, see Booker, 543 U.S. at 261-62,

that review involves consideration not only of the sentence itself, but also of the procedures

employed in arriving at the sentence. See Crosby, 397 F.3d at 114; see also United States v. Selioutsky, 409

F.3d 114, 118 (2d Cir. 2005). Reasonableness review does not entail the substitution of our

7
We need not, and do not, reach the question of whether we are authorized to review sentences for
reasonableness independently pursuant to 28 U.S.C. § 1291 (providing that courts of appeals may review final
judgm ents). See Cooper, 437 F.3d at 327 n.4.
11
judgment for that of the sentencing judge. Rather, the standard is akin to review for abuse of

discretion. See Crosby, 397 F.3d at 114 (comparing reasonableness review to review for abuse of

discretion). Thus, when we determine whether a sentence is reasonable, we ought to consider

whether the sentencing judge “exceeded the bounds of allowable discretion[,] . . . committed an

error of law in the course of exercising discretion, or made a clearly erroneous finding of fact.” Id.

(citations omitted).

We recognize that in the overwhelming majority of cases, a Guidelines sentence will fall

comfortably within the broad range of sentences that would be reasonable in the particular

circumstances. See United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005) (“While we fully

expect that it will be a rare Guidelines sentence that is unreasonable, the [Supreme] Court’s charge

that we measure each defendant’s sentence against the factors set forth in § 3553(a) requires the

door to be left open for this possibility.”). Nonetheless, we have expressed a commitment to avoid

the formulation of per se rules to govern our review of sentences for reasonableness. See Crosby, 397

F.3d at 115; see also United States v. Fairclough, 439 F.3d 76, 80 (2d Cir. 2006). We therefore decline to

establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable. See

United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc) (explaining that “[w]e do not

find it helpful to talk about the guidelines as ‘presumptively’ controlling or a guidelines sentence as

‘per se reasonable,’” because, “[a]lthough making the guidelines ‘presumptive’ or ‘per se reasonable’

does not make them mandatory, it tends in that direction; and anyway terms like ‘presumptive’ and

‘per se’ are more ambiguous labels than they at first appear”); Cooper, 437 F.3d at 331-32 (rejecting a

non-rebuttable presumption because it would effectively restore the mandatory nature of the

Guidelines and rejecting a rebuttable presumption because “[a]ppellants already bear the burden of

proving the unreasonableness of sentences on appeal”). But see United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006) (“[I]f we determine under the appropriate standard of review that the district
12
court correctly determined the relevant Guidelines range, and if the defendant was subsequently

sentenced to a term of imprisonment within that range, then the sentence is entitled to a rebuttable

presumption of reasonableness on appeal.”); United States v. Lewis, 436 F.3d 939, 946 (8th Cir. 2006)

(“A sentence falling within the applicable guideline range is presumptively reasonable.”); United States

v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (“[A] sentence imposed within the properly calculated

Guidelines range . . . is presumptively reasonable.” (ellipsis in original and internal quotation marks

omitted)); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (“We . . . credit[ ] sentences

properly calculated under the Guidelines with a rebuttable presumption of reasonableness.”); United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (“We agree with our sister circuits that have held

that a sentence within a properly calculated Guideline range is presumptively reasonable.”);

Mykytiuk, 415 F.3d at 608 (“The best way to express the new balance, in our view, is to acknowledge

that any sentence that is properly calculated under the Guidelines is entitled to a rebuttable

presumption of reasonableness.”); United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.) (considering a

sentence within the applicable Guidelines range to be “presumptively reasonable”), cert. denied, 126 S.

Ct. 840 (2005). Although the Guidelines range should serve as “a benchmark or a point of reference

or departure,” United States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir.), cert. denied, 126 S. Ct. 388

(2005); see also Crosby, 397 F.3d at 113 (“[I]t is important to bear in mind that Booker[ ] and section

3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked

at the whim of a sentencing judge.”), for the review of sentences, as well as for their imposition, we

examine the record as a whole to determine whether a sentence is reasonable in a specific case.

Accordingly, we do not hold that a Guidelines sentence, without more, is “presumptively”

reasonable.

13
 III. The Disparity Between the Respective Sentences of Fernandez and Elias

Fernandez contends that the District Court committed procedural error by allegedly failing

to consider the disparity between the sentence she received and that imposed on Elias. According

to Fernandez, Elias had a much more extensive role in the relevant conspiracy and yet was subjected

to a shorter period of imprisonment. We conclude that Fernandez has made no showing that Judge

Cote failed to consider the disparity. Moreover, we hold that such a disparity between non-similarly

situated co-defendants is not a valid basis for a claim of error under 18 U.S.C. § 3553(a)(6).

In her sentencing memorandum, Fernandez raised the projected disparity as a consideration

pursuant to 18 U.S.C. § 3553(a)(6), which provides that a sentencing court must take into account

“the need to avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” She argued that this provision counseled in her case

against the imposition of a Guidelines sentence, which would cause her to be punished significantly

more severely than Elias, who received a sentence principally of 135 months of imprisonment.

Fernandez acknowledged that the District Court imposed on Elias what it calculated to be a

Guidelines sentence, but argued that his “real offense conduct extends far beyond the amount

provided in his guilty plea.” Def.’s Sentencing Mem. at 44-45.

Fernandez insists that the District Court failed to consider the disparity argument because

there was no discussion of it during the sentencing proceeding, despite the fact that it had been

raised in her written submission. Although afforded ample opportunity at sentencing to make

whatever arguments she desired and, toward the end of the proceeding, to raise any issues that Judge

Cote had not addressed, Fernandez did not present the argument during the sentencing proceeding.

The Government suggests that as a result of Fernandez’s failure to raise the argument during the

sentencing proceeding, we may be limited to reviewing “for plain error.” Gov’t’s Br. at 27. The

14
Government fails to point to any authority, however, for the proposition that a defendant who has

properly presented an argument in a written submission is under an obligation affirmatively to raise

it again at a hearing in order to preserve the point for ordinary appellate review, and we are not

inclined to create such a requirement. On the other hand, we may take the fact that the argument

was not explicitly raised by the parties during the sentencing proceeding into account when

evaluating Fernandez’s contention that the District Court’s failure to discuss the argument on the

record during the sentencing proceeding indicates that the District Court failed to consider that

argument.

When an argument is not raised during a sentencing proceeding, the failure of the sentencing

judge to address that argument explicitly on the record does not, without more, demonstrate a failure

of consideration by the judge. Rather, we entertain a strong presumption that the sentencing judge

has considered all arguments properly presented to her, unless the record clearly suggests otherwise.

This presumption is especially forceful when, as was the case here, the sentencing judge makes

abundantly clear that she has read the relevant submissions and that she has considered the

§ 3553(a) factors.

Fernandez contends that because a judge cannot satisfy her obligation to consider the

Guidelines “by a general reference to the entirety of the Guidelines Manual,” Crosby, 397 F.3d at

111, but rather must, in the ordinary case, calculate the applicable Guidelines range, “[p]resumably,

the converse is true—a sentencing court fails to ‘consider’ the other factors listed in § 3553(a) by

making general reference to them and then choosing to impose a Guidelines sentence.” Def.-

Appellant’s Br. at 15. Although there is some surface appeal to that argument—essentially, that if

“consider” usually implies specific discussion on the record in the context of the applicable

Guidelines range, it probably means much the same thing in the context of the other § 3553(a)

15
factors—the argument conflates what are, in fact, distinct procedural requirements. A sentencing

judge’s obligation to consider the advisory Guidelines range generally amounts to a duty to take into

account a particular recommended sentencing range. If the judge improperly calculates that range,

she cannot be said to have genuinely considered it. We therefore ordinarily require a sentencing

judge to put her Guidelines calculations on the record. See Crosby, 397 F.3d at 112.

We have imposed no similar requirement that a sentencing judge precisely identify either the

factors set forth in § 3553(a) or specific arguments bearing on the implementation of those factors in

order to comply with her duty to consider all the § 3553(a) factors along with the Guidelines

applicable range. See id. at 115 (“[A] sentencing judge would commit a statutory error in violation of

section 3553(a) if the judge failed to ‘consider’ the applicable Guidelines range (or arguably

applicable ranges) as well as the other factors listed in section 3553(a).”). Consideration of the

§ 3553(a) factors is not a cut-and-dried process of factfinding and calculation; instead, a district

judge must contemplate the interplay among the many facts in the record and the statutory

guideposts. That context calls for us to “refrain[ ] from imposing any rigorous requirement of

specific articulation by the sentencing judge.” Crosby, 397 F.3d at 113; see also Jiménez-Beltre, 440 F.3d

at 519 (“[A] court’s reasoning can often be inferred by comparing what was argued by the parties or

contained in the pre-sentence report with what the judge did.”). As we have explained,

We appreciate that lexicographers, contemplating various contexts in which
the word “consider” is used, might infuse the word with a meaning that implies a
measure of sustained reflection. But our context is that of experienced district
judges, familiar with both the substantive content of relevant law and procedural
requirements, who face the daunting task of administering heavy caseloads. In this
context, we continue to believe that no specific verbal formulations should be
prescribed to demonstrate the adequate discharge of the duty to ‘consider’ matters
relevant to sentencing. As long as the judge is aware of both the statutory requirements and the
sentencing range or ranges that are arguably applicable, and nothing in the record indicates
misunderstanding about such materials or misperception about their relevance, we will accept that the
requisite consideration has occurred.

16
United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (emphasis added).

Accordingly, we presume, in the absence of record evidence suggesting otherwise, that a

sentencing judge has faithfully discharged her duty to consider the statutory factors. See Williams,

436 F.3d at 708 (commenting that consideration under the post-Booker regime “need not be

evidenced explicitly” and rejecting the argument that the District Court failed to consider the

§ 3553(a) factors where the defendant “fail[ed] to point to any indication that the district court

ignored those factors”); United States v. Ayers, 428 F.3d 312, 315 (D.C. Cir. 2005) (explaining that

when a defendant fails to object to the lack of an explanation on the record for the imposition of a

sentence within the Guidelines range, “we begin our review with the presumption that the district

court knew and applied the law correctly” and also establishing a presumption that a judge imposing

a non-Guidelines sentence “took into account all the factors listed in § 3553(a) and accorded them

the appropriate significance” (internal quotation marks omitted)); see also Walton v. Arizona, 497 U.S.

639, 653 (1990) (“Trial judges are presumed to know the law and to apply it in making their

decisions.”), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 589 (2002). In other words, no

“robotic incantations” are required to prove the fact of consideration, Crosby, 397 F.3d at 113

(internal quotation marks omitted); see also Lewis, 436 F.3d at 946 (stating that “sentencing courts are

not obligated to provide robotic incantation [about] each statutory factor . . . considered” (alteration

in original and internal quotation marks and citation omitted)),8 and we will not conclude that a

district judge shirked her obligation to consider the § 3553(a) factors simply because she did not

8
Of course, we continue to encourage sentencing judges to facilitate our review by providing complete and
detailed explanations regarding their sentencing decisions. See Crosby, 397 F.3d at 116 (“District judges will, of course,
appreciate that whatever they say or write in explaining their reasons for electing to impose a Guidelines sentence or for
deciding to impose a non-Guidelines sentence will significantly aid this Court in performing its duty to review the
sentence for reasonableness.”); United S tates v. Fuller, 426 F.3d 556, 567 (2d Cir. 2005) (urging that “for the purpose of
facilitating reasonableness review, the better practice is for the district court to record in its written order of judgment an
explanation fo r all G uidelines departures”); see also 18 U.S.C. § 3553(c) (mandating that a district court “state in open
cou rt the reasons for its im positio n of th e particular sentence”); id. § 3553(c)(2) (requiring a district judge to state “the
spec ific reason ” for imp osing a sentence that reflects a d eparture from the otherwise applicable Guidelines range).
17
discuss each one individually or did not expressly parse or address every argument relating to those

factors that the defendant advanced. Our holding is consistent with those of other Circuits that

have considered this question. See United States v. Martinez-Martinez, 442 F.3d 539, 543 (7th Cir.

2006) (“Although the district court did not specifically articulate its view on the weight to be

accorded the issue of sentencing disparity in light of § 3553(a)(6), it was not required to discuss each

factor’s effect on the sentence.”); United States v. Walker, 439 F.3d 890, 892 (8th Cir. 2006)

(“Although a district court is required to consider each of the § 3553(a) factors in determining the

proper sentence to impose, it need not categorically rehearse each of the [§] 3553(a) factors on the

record when it imposes a sentence as long as it is clear that they were considered.” (alteration in

original and internal quotation marks omitted)); United States v. Eura, 440 F.3d 625, 634 (4th Cir.

2006) (noting that a sentencing judge “was not required to discuss each § 3553(a) factor on the

record”); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (commenting that “a checklist

recitation of the section 3553(a) factors is neither necessary nor sufficient for a sentence to be

reasonable”); United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006)

(explaining that consideration of § 3553(a) factors “does not necessitate a specific articulation of

each factor separately”); Cooper, 437 F.3d at 329 (To comply with the obligation to consider the

§ 3553(a) factors, a “court need not discuss every argument made by a litigant if an argument is

clearly without merit.”); Williams, 436 F.3d at 708-09 (“Although the district court may not have

mentioned all the [§ 3553(a)] factors . . . explicitly, and although explicit mention of those factors

may facilitate review, this court has never required the ritual incantation of the factors to affirm a

sentence.” (alteration in original and internal quotation marks omitted)); United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005) (“We now . . . squarely hold that nothing in Booker or elsewhere

requires the district court to state on the record that it has explicitly considered each of the § 3553(a)

factors or to discuss each of the § 3553(a) factors.”); United States v. Contreras-Martinez, 409 F.3d 1236,
18
1242 (10th Cir. 2005) (“[T]he sentencing court is not required to consider individually each factor

listed in § 3553(a) before issuing a sentence. Moreover, we do not demand that the district court

recite any magic words to show us that it fulfilled its responsibility to be mindful of the factors that

Congress has instructed it to consider.” (citation and internal quotation marks omitted)); United States

v. George, 403 F.3d 470, 472-73 (7th Cir.) (“Judges need not rehearse on the record all of the

considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain

why (if the sentence lies outside it) this defendant deserves more or less.”), cert. denied, 126 S. Ct. 636

(2005); cf. Jiménez-Beltre, 440 F.3d at 528 (Lipez, J., dissenting) (noting that a sentencing judge cannot

rely on “formulaic invocation of the words of the statute,” but rather must provide “explanations

that are responsive to the sentencing issues raised by the parties and that relate the court’s decisions

on those issues to the multiple purposes and factors of section 3553”). In sum, our practice in

reviewing consideration of the § 3553(a) factors is to exercise “restraint, not micromanagement.”

Fleming, 397 F.3d at 100. Fernandez has made no showing that the District Court failed to consider

her disparity argument.

In any event, even assuming arguendo that 18 U.S.C. § 3553(a)(6) can support a reduced

sentence designed to eliminate or diminish disparity between the sentences imposed on co-

defendants,9 those co-defendants would have to be similarly situated because the provision

9
The plain language of § 3553(a)(6) seems not to prohibit judges from considering disparities between co-
defendan ts. See 18 U.S.C. § 3553(a)(6) (directing that sentencing judges consider “the need to avoid unwarranted
sentencing disparities am ong defend ants w ith sim ilar records w ho have been fou nd guilty of sim ilar conduct”).
However, as we have recognized in the context of evaluating the propriety of a departure within the Guidelines scheme,
the Sentencing Reform Act of 1984 (“SRA”), Pub. L. 98-473, Chapter II, §§ 211-238, 98 Stat. 1987 (1984), whence the
language in § 3553(a)(6) com es, see SRA § 212(a), 98 Stat. at 1990, was intended to “eliminat[e] disparity on a national
level.” United States v. Tejeda, 146 F.3d 84, 87 (2d Cir. 1998) (em phasis in original); see also U.S.S.G. Ch. 1, Pt. A, intro.
cmt. (discussing Congress’s intention in passing the SRA to reduce the “wide disparity in sentences imposed by different
federal cou rts for similar criminal condu ct by similar offenders”). In light of the SRA ’s goal of national consistency in
sentencing, there is disagreement over whether § 3553(a)(6) may support a non-Guidelines sentence for the purpose of
preventing a disparity b etween sente nces impose d on co-d efendants. Com pare United States v. Boscarino, 437 F.3d 634, 638
(7th Cir. 2006) (suggesting that “the kind of ‘disparity’ with which § 3553(a)(6) is concerned is an unjustified difference
across judge s (or districts) rather than among defend ants to a single case”), with United States v. Ortiz-Zayas, No. 02 Cr.
0837, 2005 WL 1430489, at *3 (S.D.N.Y. June 17, 2005) (“Since Booker, a growing number of courts have held that
sentencing judges are no longer prohibited from considering the disparity between codefend ants in fashioning a
19
mandates that sentencing judges take into account “unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6) (emphases added). Elias and Fernandez were not similarly situated for many reasons,

not the least of which was that Elias, unlike his daughter, qualified under the Guidelines for a three-

level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 and a two-level “safety

valve” reduction pursuant to U.S.S.G. §§ 2D1.1(b)(7) and 5C1.2. See United States v. Boscarino, 437

F.3d 634, 638 (7th Cir. 2006) (“[A] sentencing difference is not a forbidden ‘disparity’ if it is justified by

legitimate considerations, such as rewards for cooperation.” (emphasis in original)); United States v.

Vasquez, 433 F.3d 666, 671 (8th Cir. 2006) (determining that a sentencing disparity was “not

unwarranted” where defendant “was responsible for a larger quantity of drugs and had a greater

criminal history than [his co-defendant]”); United States v. Schneiderhan, 404 F.3d 73, 83 (1st Cir.)

(finding no unwarranted sentencing disparity where the co-defendants who were subjects of

comparison “pleaded guilty to obstructing justice, eliminating the ‘lack of remorse’ rationale that

influenced the sentence imposed on defendant”), cert. denied, 126 S. Ct. 381 (2005); see also Jiménez-

Beltre, 440 F.3d at 519 (“As with departures, the proponent of a factor that would work in the

proponent’s favor has to provide the basis to support it.”). Moreover, even if § 3553(a)(6) were a

lawful basis for leniency here, the requirement that a sentencing judge consider an 18 U.S.C.

§ 3553(a) factor is not synonymous with a requirement that the factor be given determinative or

dispositive weight in the particular case, inasmuch as it is only one of several factors that must be

weighted and balanced by the sentencing judge. See Martinez-Martinez, 442 F.3d at 543 (“That some

courts have chosen to avoid disparity does not mean that all district courts are compelled to adjust a

sentence downward from the advisory guidelines range in order for that sentence to be

reasonable.”). The weight to be afforded any given argument made pursuant to one of the § 3553(a)
reasonable sentence.” (internal quotation marks omitted)). In light of our conclusion that Fernandez and Elias were not
similarly situ ated , we leave resolution of that issue for another day.
20
factors is a matter firmly committed to the discretion of the sentencing judge and is beyond our

review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances

presented. See Jiménez-Beltre, 440 F.3d at 419 (“Assuming a plausible explanation and a defensible

overall result, sentencing is the responsibility of the district court.”).

In sum, we conclude that Fernandez’s claim of procedural error based on the District

Court’s silence on one of her arguments (relating to the disparity between her sentence and Elias’s)

is unpersuasive. The absence of explicit discussion of Fernandez’s specific argument—which was

not raised at the sentencing hearing—does not overcome our strong presumption that the District

Court faithfully performed its statutory obligation to consider the § 3553(a) factors.

IV. Fernandez’s Cooperation with the Government

Fernandez argues that the District Court “may not have appreciated its discretion to

consider Ms. Fernandez’s cooperation with the government” pursuant to 18 U.S.C. § 3553(a)(1).

Def.-Appellant’s Br. at 21. According to Fernandez, even though the Government did not make a

motion regarding substantial assistance pursuant to U.S.S.G. § 5K1.1, see note 2, ante, she may

nonetheless benefit from her efforts to cooperate insofar as they shed light on her “history and

characteristics.” 18 U.S.C. § 3553(a)(1).10 At Fernandez’s sentencing hearing, the Government

conceded that “under 3553(a) the Court’s empowered to consider virtually any factor in sentencing.”

Tr. at 12.

We agree that in formulating a reasonable sentence a sentencing judge must consider “the

history and characteristics of the defendant” within the meaning of 18 U.S.C. § 3553(a)(1), as well as

the other factors enumerated in § 3553(a), and should take under advisement any related arguments,
10
While Fernandez’s counsel limited his argument regarding the relevance of cooperation to § 3553(a)(1), we
note that cooperation m ay be rele vant to other § 3553(a) fac tors as well.
21
including the contention that a defendant made efforts to cooperate, even if those efforts did not

yield a Government motion for a downward departure pursuant to U.S.S.G. § 5K1.1 (“non-5K

cooperation”). Section 3553(a)(1), in particular, is worded broadly, and it contains no express

limitations as to what “history and characteristics of the defendant” are relevant. This sweeping

provision presumably includes the history of a defendant’s cooperation and characteristics evidenced

by cooperation, such as remorse or rehabilitation.

Fernandez argues that Judge Cote did not comprehend her post-Booker authority on the basis

of the judge’s statement that Fernandez’s conduct in prison and her inability to cooperate in a

manner that satisfied the Government “undercut[ ] using that brief exploration of what it was like

being a cooperator as something that should indicate in this case an alteration to a guideline

sentence.” Tr. at 24. According to Fernandez, that statement shows that the District Court

“neglected to address the defense’s argument that Ms. Fernandez’s efforts should be taken into

account under 18 U.S.C. § 3553(a)(1).” Def.-Appellant’s Br. at 20. We disagree.

Even if, as Fernandez argues, the District Court’s reference to “an alteration to a guideline

sentence,” standing alone, might be interpreted as a misapprehension that a Guidelines sentence

should presumptively be imposed, that phrase could not overcome the clear indication in the record

that the Court was well aware of its authority to impose a non-Guidelines sentence and its duty to

consider “the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), as well as all the

other § 3553(a) factors. Judge Cote discussed Fernandez’s cooperation at length and recognized

“that I have the power to depart and that I have the duty to determine what a reasonable sentence is

and to consider all the factors under 3553(a).” Tr. at 24 (emphasis added). The judge thoughtfully

evaluated Fernandez’s cooperation, including “what light it might shed on the character of a

22
defendant,” concluding that the cooperation was “fitful” and that it should not “be used to lighten

her sentence.” Id. at 22-23.11

As discussed above, we do not require any “specific articulation by the sentencing judge,”

Crosby, 397 F.3d at 113, to prove that a judge has considered the § 3553(a) factors. Judge Cote’s

explanation made clear that she fully understood her duty and her authority in the post-Booker

sentencing regime, considered Fernandez’s particular efforts to cooperate and what those efforts

showed about this defendant’s “history and characteristics,” 18 U.S.C. § 3553(a)(1), and dutifully

exercised her discretion in formulating a reasonable sentence. In addition, we underscore that the

requirement that the sentencing judge consider a § 3553(a) factor that may cut in a defendant’s favor

does not bestow on the defendant an entitlement to receive any particular “credit” under that factor.

If the ultimate sentence is reasonable and the sentencing judge did not commit procedural error in

imposing that sentence, we will not second guess the weight (or lack thereof) that the judge

accorded to a given factor or to a specific argument made pursuant to that factor. Although Judge

Cote had the power, as long as the sentence imposed was reasonable, to reduce Fernandez’s

sentence in light of “non-5K cooperation” under 18 U.S.C. § 3553(a), she was under no obligation

to provide any such benefit.

V. The Reasonableness of the Sentence Imposed

In connection with the arguments discussed above, Fernandez argues that the 151-month

term of imprisonment to which she was principally sentenced was “unreasonably long.” Def.-

11
It was not error for Judge Cote to employ the Guidelines range as a starting point and then to determine
whether the arguments presented pursuant to the § 3553(a) factors warranted “lighten[ing]” of, Tr. at 23, or fashioning of
an “alteration to,” id. at 24, the advisory Gu idelines sentence (or, in other words, imp osing a non-G uidelines sentence).
See Crosby, 397 F.3d at 112 (directing that “[t]he applicable Guidelines range is normally to be determined in the same
manner as before Booker[ ]”); see also Rub enstein, 403 F.3d at 98 -99 (characterizing the G uidelines in post-Booker sentencing
as “a benchm ark or a point of refe rence or departure”).
23
Appellant’s Br. at 25. The term of imprisonment imposed, which was at the floor of the applicable

Guidelines range, was thirty-one months above the mandatory minimum, but far below the statutory

maximum of life imprisonment. Upon a consideration of the entire record, we conclude that the

sentence was well within the broad range of reasonable sentences that the District Court could have

imposed in the circumstances presented.

CONCLUSION

In conclusion, we hold that:

(1) the Court of Appeals has authority to review a sentence for reasonableness pursuant to

18 U.S.C. § 3742(a)(1);

(2) the sentencing judge need not address on the record each of the 18 U.S.C. § 3553(a)

factors, nor each argument that a defendant makes with reference to those factors, in order

to comply with her obligation to consider the factors;

(3) in the absence of record evidence suggesting the contrary, we entertain a strong

presumption that a sentencing judge has taken properly presented arguments into account

and considered all the § 3553(a) factors in the course of imposing a sentence;

(4) though we do not reach whether § 3553(a)(6) may support a non-Guidelines sentence for

the purpose of preventing a disparity between sentences imposed on co-defendants, that

provision relates only to “unwarranted” disparity between similarly situated defendants;

(5) a sentencing judge may take “non-5K cooperation” into account when considering the

§ 3553(a) factors;

24
 (6) the requirement that a sentencing judge consider a § 3553(a) factor does not mandate

that a defendant actually be granted “credit” under that factor, and the weight to be afforded

any given argument made pursuant to one of the § 3553(a) factors is beyond our review, as

long as the sentence ultimately imposed is reasonable in light of all the circumstances

presented; and

(6) in the particular circumstances presented here, a sentence including a 151-month term of

imprisonment was not unreasonable.

* * * *

Accordingly, we conclude that Fernandez has failed to show that the sentence imposed on

her was unreasonable. We therefore AFFIRM the judgment of the District Court.

25