08-3490-cr
United States v. Torres
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
7 SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
8 BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
9 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
10 IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
11 EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
12 “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
13 THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
14 ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
15 SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
16 ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
17 HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
18 AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
19 REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
20 THE ORDER WAS ENTERED.
21
22 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
23 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
24 of December, two thousand nine.
25
26 Present:
27 HON. PIERRE N. LEVAL,
28 HON. BARRINGTON D. PARKER,
29 HON. RICHARD C. WESLEY,
30 Circuit Judges,
31
32 ________________________________________________
33
34 United States of America,
35
36 Appellee,
37
38 v. No. 08-3490-cr
39
40 Gilbert Torres,
41
42 Defendant-Appellant.
43
44 ________________________________________________
1
2 For Defendant-Appellant: LAWRENCE GERZOG , New York, New York
3
4 For Appellee: LEV L. DASSIN , Acting United States Attorney for the Southern
5 District of New York (Iris Lan & Daniel A. Braun, Assistant
6 United States Attorney, of counsel), New York, New York
7 ________________________________________________
8
9 Appeal from the United States District Court for the Southern District of New York
10 (Cote, J.).
11
12 ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
13 DECREED that the judgment of the district court dated July 11, 2008, be and hereby is
14 AFFIRMED.
15 Gilbert Torres appeals from his sentence of 151 months incarceration followed by 3 years
16 supervised release, imposed by the district court following his plea of guilty to one count of
17 conspiracy to distribute and possess with intent to distribute methylenedioxymethamphetamine
18 (“MDMA”) under 21 U.S.C. § 846. Torres argues that his sentence is both procedurally and
19 substantively unreasonable. We assume the parties’ familiarity with the facts and the record of
20 prior proceedings, which we reference only as necessary to explain our decision.
21 Torres makes three arguments on appeal. First, he claims that the district court
22 committed procedural error because although it determined that Torres’s sentence was
23 “reasonable,” it did not specifically invoke the requirement, under the so-called “parsimony
24 clause” of 18 U.S.C. § 3553(a), that a sentence be “sufficient, but not greater than necessary.”
25 Second, he asserts that the district court committed procedural and substantive error when it
26 determined, based on his criminal history, that deterrence required a more severe sentence,
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1 notwithstanding evidence that certain psychiatric conditions contributed to his past crimes.
2 Third, Torres argues that the district court committed procedural error in failing to consider
3 whether he should receive a downward departure under § 4A1.3 of the Sentencing Guidelines on
4 the ground that his criminal history calculation overstates the likelihood of his recidivism.
5 We consider all of these arguments to be without merit. First, although the district court
6 did not refer to the parsimony clause of § 3553(a), it need not have done so. Cf. United States v.
7 Banks, 464 F.3d 184, 190 (“[T]here is no requirement that the court mention the required factors
8 [under § 3553(a)], much less explain how each factor affected the court's decision.”). Second,
9 although Torres claims that the district court committed procedural error by failing to consider
10 his mental health, the sentencing transcript shows that the court explicitly considered the
11 evidence of Torres’s psychiatric condition when determining that deterrence required the
12 sentence it imposed. We also find that this factor “can bear the weight assigned to it,” United
13 States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc), and therefore the district court’s
14 consideration of it is not substantively unreasonable. Finally, “a district court’s refusal to depart
15 from the Guidelines is [ordinarily] not appealable.” United States v. Duarte, 327 F.3d 206, 207
16 (2d Cir. 2003). Although we will consider such an appeal if the district court incorrectly
17 believed it was without the power to grant a departure, id., nothing in the record indicates that the
18 district court suffered from such a misapprehension.
19
20 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
21
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1 FOR THE COURT:
2 CATHERINE O’HAGAN WOLFE, CLERK
3
4 By:
5
6 ____________________________________
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