10-2530-cr
USA v. Juvenile Male PO
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 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 Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of February, two thousand twelve.
Present:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges,
JANE A. RESTANI,
Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 10-2530-cr
JUVENILE MALE PO,
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: Jane S. Meyers, Law Office of Jane S. Meyers,
Brooklyn, N.Y.
*
The Honorable Jane A. Restani, Judge, United States Court of International Trade,
sitting by designation.
For Appellee: Richard P. Donoghue, David C. James, Assistant
United States Attorneys, of counsel, for Loretta E.
Lynch, United States Attorney for the Eastern District
of New York.
Appeal from the United States District Court for the Eastern District of New York
(Wexler, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Juvenile Male PO appeals from a judgment entered on August 2,
2006 in the United States District Court for the Eastern District of New York (Wexler, J.).
Following a guilty plea, Juvenile Male PO was convicted of one count of assault resulting in
serious bodily injury in aid of a racketeering activity, in violation of 18 U.S.C. § 1959(a)(3). He
was sentenced to ten years’ imprisonment, three years of supervised release, and a $100 special
assessment. On appeal, the defendant claims that the district court’s sentence is procedurally and
substantively unreasonable. We presume the parties’ familiarity with the facts and procedural
history of this case.
We review a district court’s sentence for “reasonableness,” “which is ‘akin to review for
abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds
of allowable discretion, committed an error of law in the course of exercising discretion, or made
a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)
(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). A district
court commits “procedural error where it fails to calculate the Guidelines range (unless omission
of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the
Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a
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clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United
States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008). Where the Court determines that there was
no procedural error in a district court’s sentencing, it “then considers the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard, taking into
account the totality of the circumstances.” United States v. Rigas, 583 F.3d 108, 121 (2d Cir.
2009) (internal quotation marks omitted).
A district court is authorized to depart from a Guidelines range if the court finds that
“there exists an aggravating or mitigation circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in formulating the guidelines that should
result in a sentence different from that described.” 18 U.S.C. § 3553(b). Section 5K2.0
incorporates this statutory provision into the Guidelines:
This subpart . . . identifies some of the circumstances that the Commission may have not
adequately taken into consideration in determining the applicable guideline range (e.g., as
a specific offense characteristic or other adjustment). If any such circumstance is present
in the case and has not adequately been taken into consideration in determining the
application guideline range, a departure consistent with 18 U.S.C. § 3553(b) and the
provisions of this subpart may be warranted.
U.S.S.G. § 5K2.0.
Sections 5K2.1 through 5K2.23 set forth departure grounds specifically contemplated by
the Sentencing Commission. Section 5K2.2 provides for an upward departure in cases where
“significant physical injury resulted.” Id. § 5K2.2. “The extent of the increase ordinarily should
depend on the extent of the injury, the degree to which it may prove permanent, and the extent to
which the injury was intended or knowingly risked. When the victim suffers a major, permanent
disability and when such injury was intentionally inflicted, a substantial departure may be
appropriate.” Id.
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Turning first to procedural reasonableness, Juvenile Male PO argues that the district
court committed procedural error because it exclusively based its sentence upon the degree of
injury that the victim suffered and did not properly consider all of the factors enumerated in 18
U.S.C. § 3553(a). In support of his argument that the district court relied solely upon the level of
injury, the defendant notes that the only question posed by the district court during sentencing
was directed to the victim’s wife and was about the victim’s current condition. He further
contends that the district court gave inadequate attention to the defendant’s particular history and
characteristics. This argument is unavailing. Here, the district court properly advised counsel at
the beginning of the sentencing that it was considering an upward departure and offered the
defendant an adjournment so defense counsel could fully address the grounds for the upward
departure. After hearing arguments from counsel and calculating the Guidelines range, the
district court then indicated that it was going to depart upward from the Guidelines range based
on § 5K2.2, “the seriousness of the injury,” but noted that, in imposing sentence, it was also
“considering 3553(a), as to all the other matters I’m supposed to consider.” App. 71. Thus,
while it is true that the district court based its decision to depart from the Guidelines on the
extraordinary injuries suffered by the victim, the district court did not solely base its sentence on
that one consideration.
Turning to substantive reasonableness, the defendant argues that the sentence is
unreasonably harsh because the victim’s injury does not justify the great disparity between the
Guidelines range for his crime—46 to 57 months—and the sentence imposed—120 months. We
disagree. In this case, the defendant and his fellow gang members inflicted extraordinary injury
upon an innocent security guard, resulting in immense suffering by the victim and his loved
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ones. As a result of being beaten by the defendant and his associates, the victim is missing the
left side of his brain, is likely in a permanent coma, and has to be fed through a feeding tube.
Accordingly, because the victim has “suffer[ed] a major, permanent disability” and because
“such injury was intentionally inflicted,” see U.S.S.G. § 5K2.2, we cannot conclude that the
district court abused its discretion in choosing to upwardly depart from the Guidelines range and
sentence the defendant to ten years’ imprisonment.
We have considered all of Defendant-Appellant’s remaining arguments and find them to
be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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