08-4995-cr
USA v. McDowall
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR
OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH
A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX
OR BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH
THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS
ENTERED.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl
3 Street, in the City of New York, on the 5 th day of January, two thousand ten,
4
5 PRESENT:
6 Robert A. Katzmann,
7 Barrington D. Parker,
8 Gerard E. Lynch,
9 Circuit Judges.
10 ______________________________________
11
12 United States of America,
13
14 Appellee,
15
16 -v.- No. 08-4995-cr
17 S UMMARY O RDER
18
19 Andre Moore, Aleksander Lipkin, Marina Dubin, Kerri Clarke, Michael Irving,
20
21 Defendants,
22
23 Maurice McDowall,
24 Defendant-Appellant.
25 _______________________________________
26
27 FOR DEFENDANT-APPELLANT: Jeremy Gutman, New York, NY
28
1
1 FOR APPELLEE: Richard C. Daddario, Katherine Polk Failla,
2 Assistant United States Attorneys, for Lev. L.
3 Dassin, Acting United States Attorney for the
4 Southern District of New York, Attorney for the
5 United States of America, New York, NY
6
7 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
8 DECREED that the judgment of the district court is AFFIRMED.
9 Defendant-Appellant Maurice McDowall appeals from a judgment
10 of conviction in the United States District Court for the
11 Southern District of New York (Patterson, J.). McDowall was
12 convicted of conspiracy to commit bank and wire fraud in
13 violation of 18 U.S.C. § 1349 and sentenced principally to 120
14 months incarceration. McDowall argues, on appeal, that his
15 sentence is procedurally and substantively unreasonable. We
16 assume the parties’ familiarity with the underlying facts and
17 procedural history of this case.
18 First, McDowall argues that his sentence is procedurally
19 unreasonable because Judge Patterson did not give him notice of
20 his intention to impose a sentence above the applicable
21 Guidelines range. The record below shows that Judge Patterson
22 imposed McDowall’s sentence in variance from the Guidelines range
23 upon consideration of the Guidelines and § 3553(a)’s sentencing
24 factors. “Departure” for notice purposes is a “term of art” that
25 “refers only to non-Guidelines sentences imposed under the
26 framework set out in the Guidelines.” Irizarry v. United States,
27 128 S. Ct. 2198, 2202 (2008). Under Irizarry, a sentencing court
28 is not required to notify a defendant of its intent to impose a
2
1 sentence that varies from the Guidelines. Id. Consequently, the
2 district court was not required to give McDowall notice that his
3 sentence would vary from the Guidelines range. Id. That Judge
4 Patterson stated he was “departing[ing] upward from the guideline
5 sentence” is not conclusive because, colloquially, “departure”
6 and “variance” are often used “interchangeably.” United States
7 v. Keller, 539 F.3d 97, 99 n.2 (2d Cir. 2008).
8 Next, McDowall argues that his sentence was procedurally
9 defective because the court addressed only one statutory factor–
10 deterrence. However, a sentencing judge is not required to
11 articulate that he has considered all of the § 3553(a) factors as
12 long as “the judge is aware of both the statutory requirements
13 and the sentencing range or ranges that are arguably applicable,
14 and nothing in the record indicates misunderstanding about such
15 materials or misperception about their relevance.” United States
16 v. Fleming, 397 F.3d 95, 100(2d Cir. 2005). The record,
17 including Judge Patterson's reference to deterrence, shows Judge
18 Patterson understood his obligation to consider the Guidelines
19 and § 3553(a)'s sentencing factors. Indeed, while the judge
20 relied on the importance of deterrence as the reason for imposing
21 a stringent sentence, he specifically cited all of the factors as
22 having been considered. Nothing in the record indicates Judge
23 Patterson misunderstood the factors or misperceived any of the
24 evidence or factors that led to his sentencing decision.
3
1 Finally, McDowall alleges that his sentence is substantively
2 unreasonable because(1) Judge Patterson provided no reason for
3 imposing an above-Guideline sentence and (2) Judge Patterson did
4 not base McDowall’s sentence on proper consideration of the
5 statutory sentencing factors. As discussed above, these
6 contentions are without merit.
7 We have reviewed McDowall's other contentions and conclude
8 that they are without merit.
9 The judgment of the district court is AFFIRMED.
10
11
12 For the Court:
13 Catherine O’Hagan Wolfe, Clerk
14
15 By: __________________________
16
17
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