United States v. Magana

06-5739-cr United States v. Magana 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 SUMMARY ORDER 4 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 5 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 6 APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 7 IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 8 ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 9 MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 10 At a stated term of the United States Court of Appeals for the 11 Second Circuit, held at the Daniel Patrick Moynihan United States 12 Courthouse, 500 Pearl Street, in the City of New York, on the 13 20th day of January, two thousand ten. 14 PRESENT: 15 HON. RALPH K. WINTER, 16 HON. ROBERT D. SACK, 17 Circuit Judges. 18 19 HON. BRIAN M. COGAN, 20 District Judge.* 21 -------------------------------------- 22 UNITED STATES OF AMERICA, 23 Appellee, 24 - v - No. 06-5739-cr 25 VICTOR MANUEL ADAN CARRASCO, OSCAR 26 MORENO AGUIRRE, JORGE MANUEL TORRES- 27 TEYER, 28 Defendants-Appellants. 29 -------------------------------------- * The Honorable Brian M. Cogan, of the United States District Court for the Eastern District of New York, sitting by designation. 1 For Appellant Victor Manuel 2 Adan Carrasco: Paul J. Angioletti, Staten Island, 3 NY. 4 For Appellee: Michael J. Garcia, United States 5 Attorney for the Southern District 6 of New York; Anirudh Bansal, 7 Katherine Polk Failla, Assistant 8 United States Attorneys, New York, 9 NY. 10 Appeal from the United States District Court for the 11 Southern District of New York (Gerard E. Lynch, Judge). 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 13 DECREED that the judgment of the district court be, and it hereby 14 is, AFFIRMED. 15 This summary order addresses only the appeal of Victor 16 Manuel Adan Carrasco, docket 06-5739-cr. 17 In 2005, we considered appeals from Carrasco and his co- 18 defendants regarding the sentences they had received in district 19 court. United States v. Magana, 147 Fed. App'x 200 (2d Cir. 20 2005). We rejected Carrasco's argument that the district court 21 erred by denying his application for a minor role adjustment 22 pursuant to U.S.S.G. § 3B1.2. Id. at 201. Pursuant to the 23 consent of the parties, we remanded under United States v. 24 Crosby, 397 F.3d 103 (2d Cir. 2005). Magana, 147 Fed. App'x at 25 202. On remand, the district court declined to resentence 26 Carrasco. United States v. Torres Teyer, 2006 WL 3511885 27 (S.D.N.Y. December 6, 2006). Carrasco now appeals. We assume 28 the parties' familiarity with the underlying facts and procedural 29 history of the case, and the issues on appeal. 30 Carrasco argues that his sentence was substantively 31 unreasonable. We disagree. "In conducting reasonableness 32 review, we apply the familiar abuse-of-discretion standard of 33 review." United States v. Irving, 554 F.3d 64, 71 (2d Cir. 34 2009)(internal quotation marks omitted). In order to determine 35 if a sentence is substantively reasonable, "we consider whether 36 the length of the sentence is reasonable in light of the factors 37 outlined in 18 U.S.C. § 3553(a)." United States v. Rattoballi, 38 452 F.3d 127, 132 (2d Cir. 2006). The district court explicitly 39 based Carrasco's sentence on the factors set forth in Section 40 3553(a), determining that the sentence was warranted based on 41 Carrasco's involvement in a very large-scale drug distribution 2 1 organization, and the fact that he had carried a gun as part of 2 that involvement. See Torres-Teyer, 2006 WL 3511885 at *11. We 3 find no basis on which to conclude that the district court abused 4 its discretion in this regard. 5 For the foregoing reasons, the judgment of the District 6 Court as to Carrasco is hereby AFFIRMED. The appeals of Jorge 7 Manuel Torres-Teyer, docket 06-5840-cr, and Oscar Moreno Aguirre, 8 docket 07-0471-cr, are hereby de-consolidated from Carrasco's 9 appeal. We continue to reserve decision as to them. 10 FOR THE COURT: 11 Catherine O'Hagan Wolfe, Clerk of the Court 12 By:_________________________________ 3