09-1943-cr
USA v. Catanzano
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
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 .
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1 st day of February, two thousand and ten.
Present: PIERRE N. LEVAL,
RICHARD C. WESLEY,
Circuit Judges,
JOHN GLEESON,
District Judge. *
__________________________________________________
UNITED STATES OF AMERICA,
Appellee,
- v. - (09-1943-cr)
TODD CATANZANO,
Defendant-Appellant.
__________________________________________________
*
The Honorable John Gleeson, United States District Court for the Eastern
District of New York, sitting by designation.
For Appellant: FREDERICK H. COHN, Law Office of
Frederick H. Cohn, New York, New
York.
For Appellee: MICHAEL D. MAIMIN, Assistant
United States Attorney
(Katherine Polk Failla,
Assistant United States
Attorney, on the brief), for
Preet Bharara, United States
Attorney for the Southern
District of New York, New York,
New York.
Appeal from the United States District Court for the
Southern District of New York (Berman, J.).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the April 2, 2009 judgment of the United
3 States District Court for the Southern District of New York
4 is AFFIRMED.
5 Defendant appeals from a judgment of conviction arising
6 out of his guilty plea to one count of unlawfully conspiring
7 to distribute and possess with intent to distribute more
8 than fifty grams of methamphetamine, in violation of 21
9 U.S.C. § 846. Following his plea, defendant was sentenced
10 to five months’ imprisonment and five years’ supervised
11 release, with five months of his term of supervised release
12 to be served in a community confinement center.
13 Defendant’s sole argument in this appeal is that the
14 district court “f[a]iled to exercise the discretion required
2
1 of it” by “refusing to consider a sentence that does not
2 include imprisonment.” In essence, defendant urges us to
3 attribute procedural error to the sentence imposed by the
4 district court. See United States v. Johnson, 567 F.3d 40,
5 51-52 (2d Cir. 2009).
6 We decline the invitation. The district court’s
7 Guidelines calculation is undisputed, and there is no
8 question that the court considered the Guidelines on an
9 advisory basis only. We must also “presume, in the absence
10 of record evidence suggesting otherwise, that a sentencing
11 judge has faithfully discharged her duty to consider the
12 statutory factors” set forth in 28 U.S.C. § 3553(a). United
13 States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006).
14 Finally, defendant’s argument proceeds on the basis of a
15 factual premise — i.e., that the district court “refus[ed]
16 to consider” a non-incarceratory sentence — that is
17 expressly belied by the record. The sentencing judge stated
18 that he arrived at the sentence based on consideration of
19 “the combination of 18 U.S.C. Section 3553(a) factors . . .
20 including the nature and circumstances of the offense,” and
21 that “the reason . . . that there should not be a non-
22 incarcerative sentence has to do with the objectives of the
3
1 statute.”
2 In light of the Fernandez presumption, and based on the
3 transcript of the sentencing, we are satisfied that the
4 district court was sufficiently aware of the parameters of
5 its sentencing authority. Put differently, there is a
6 difference between a district court’s failure to acknowledge
7 the scope of its sentencing discretion, and a decision to
8 exercise that discretion in manner that is at odds with the
9 arguments presented by a criminal defendant. Our review of
10 the record indicates that this case falls squarely into the
11 latter category. Accordingly, the April 2, 2009 judgment of
12 the district court is AFFIRMED.
13
14 For the Court
15 Catherine O’Hagan Wolfe, Clerk
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