20-482-cr
United States v. McFadden
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 17th day of February, two thousand twenty-one.
4
5 PRESENT: BARRINGTON D. PARKER,
6 RAYMOND J. LOHIER, JR.,
7 STEVEN J. MENASHI,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v.
15
16 MARKQUEZ MCFADDEN, AKA BUG OUT, No. 20-482-cr
17
18 Defendant-Appellant. *
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20
* The Clerk of Court is directed to amend the caption as set forth above.
1
2 FOR DEFENDANT-APPELLANT: DANIEL M. PEREZ, Law Offices
3 of Daniel M. Perez, Newton,
4 NJ
5
6 FOR APPELLEE: JOSHUA A. NAFTALIS, Assistant
7 United States Attorney
8 (Andrea M. Griswold, Thomas
9 Mckay, Assistant United States
10 Attorneys, on the brief), for
11 Audrey Strauss, United States
12 Attorney for the Southern
13 District of New York, New
14 York, NY
15
16 Appeal from a judgment of the United States District Court for the
17 Southern District of New York (Sidney H. Stein, Judge).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREED that the judgment of the District Court is AFFIRMED.
20 Defendant-Appellant Markquez McFadden appeals from a judgment of
21 conviction entered by the District Court (Stein, J.) following a jury trial in which
22 he was found guilty of conspiracy to commit Hobbs Act robbery, in violation of
23 18 U.S.C. § 1951, and using, carrying, and possessing a firearm, which was
24 brandished, during and in relation to the Hobbs Act robbery, in violation of 18
2
1 U.S.C. § 924(c)(1)(A). McFadden was initially sentenced principally to a term of
2 imprisonment of 120 months and a 5-year term of supervised release. Following
3 the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019),
4 McFadden moved to vacate his § 924(c) conviction and to remand the case for
5 resentencing, and the motion was granted. The District Court resentenced
6 McFadden principally to a term of imprisonment of 108 months and a 3-year
7 term of supervised release. On appeal, McFadden challenges his new sentence as
8 procedurally and substantively unreasonable. We assume the parties’ familiarity
9 with the underlying facts and prior record of proceedings, to which we refer only
10 as necessary to explain our decision to affirm.
11 1. Procedural Reasonableness
12 We review questions of law as to the operation of the Sentencing
13 Guidelines de novo and findings of fact for clear error. See United States v.
14 Vasquez, 389 F.3d 65, 68 (2d Cir. 2004). “When . . . credibility determinations are
15 at issue, we give particularly strong deference to a district court finding.” United
16 States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012).
17 McFadden argues that the District Court improperly applied a six-level
3
1 enhancement under § 2B3.1(b)(2)(B) of the Guidelines because the record does
2 not support a finding that he put a gun in the victim’s mouth during the robbery.
3 We disagree. At trial, the victim testified that McFadden put a gun in her mouth
4 and threatened to kill her, and another witness testified that, soon afterward, he
5 witnessed McFadden physically restrain this victim with his “gun out.” App’x
6 at 94. The victim’s testimony was enough to support the District Court’s factual
7 finding, and we see no basis to question the District Court’s credibility
8 determination even though it determined that other portions of the victim’s
9 testimony — primarily relating to her alleged participation in an illegal gambling
10 operation — were untrue. See United States v. Norman, 776 F.3d 67, 78 (2d Cir.
11 2015). We note, too, that at the resentencing hearing McFadden had ample
12 opportunity to challenge the finding as a basis for the enhancement.
13 2. Substantive Reasonableness
14 We will “set aside a district court’s substantive determination only in
15 exceptional cases where the trial court’s decision cannot be located within the
16 range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d
17 Cir. 2008) (en banc) (quotation marks omitted). McFadden argues that his
4
1 sentence was substantively unreasonable primarily because the District Court
2 failed to account for mitigating factors or to properly consider sentencing
3 disparities between McFadden and his co-defendants. We are not persuaded. In
4 imposing a below-Guidelines sentence, the District Court adequately considered
5 several mitigating factors in McFadden’s favor, such as his age, the support of his
6 family, and his remorse. And the District Court was not required to consider
7 sentencing disparities between co-defendants. See United States v. Frias, 521
8 F.3d 229, 236 (2d Cir. 2008). For these reasons, we reject McFadden’s argument
9 that his 108-month sentence was substantively unreasonable.
10 We have considered McFadden’s remaining arguments and conclude that
11 they are without merit. For the foregoing reasons, the judgment of the District
12 Court is AFFIRMED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk of Court
5