Opinion
No. 09-2671-cr.
January 13, 2011.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge).
UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Marsha Taubenhaus, New York, NY, for Defendant-Appellant.
David C. James and Justin D. Lerer, Assistant United States Attorneys for the Eastern District of New York (Loretta E. Lynch, United States Attorney, on the brief), Office of the United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
Present: WILFRED FEINBERG, JOSE A. CABRANES, REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Jerry Johnson ("defendant") appeals from a judgment of the District Court convicting him, pursuant to his guilty plea, of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Johnson was sentenced principally to 97 months of incarceration. On appeal, he argues that his sentence was procedurally unreasonable because (a) the District Court applied an "incorrect legal standard" regarding claims about pretrial detention conditions and (b) the District Court did not expressly address defendant's arguments regarding pretrial detention during sentencing. We assume the parties' familiarity with the facts and procedural history of this action.
We review all sentences using a "deferential abuse-of-discretion standard." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (internal quotation marks omitted). Our review has "two components: procedural review and substantive review." Id. We "first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We then engage in review of the substantive reasonableness of the sentence and reverse only when the Court's sentence "cannot be located within the range of permissible decisions." United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted).
Defendant sought a below-guidelines sentence based on his pretrial detention conditions. He claims that the District Judge applied an incorrect legal standard when she said that there had not been "any conceivable kind of due process violation in connection with anything that has occurred in this case." GA 34. Defendant argues that it was inappropriate to consider the question of a due process violation during detention in deciding whether to give a below-guidelines sentence based upon his pretrial detainment. In fact, according to the record the District Judge's statement referred to defendant's claim that he had not been informed of the entire quantity of cocaine for which he would be held responsible at the time of his guilty plea — an argument rejected by the District Court and an issue not raised by defendant on appeal.
Although the District Court did not expressly address pretrial detention conditions, absent evidence to the contrary the District Court is "strong[ly] presum[ed]" to have "faithfully discharged" its duty to consider the factors under 18 U.S.C. § 3553(a) "in the absence of record evidence suggesting otherwise." United States v. Fernandez, 443 F.3d 19, 30, 33 (2d Cir. 2006). Indeed, "we do not insist that the district court address every argument the defendant has made or discuss every § 3553(a) factor individually," United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir. 2007), and "we never have required a [d]istrict [c]ourt to make specific responses to points argued by counsel in connection with sentencing," United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). Defendant did not make a showing that the District Court failed to consider the § 3553(a) factors. Accordingly, we find that sentencing was both procedurally and substantively reasonable.
We note, moreover, that inasmuch as "presentence confinement conditions may in appropriate cases be a permissible basis for downward departures," United States v. Carty, 264 F.3d 191, 196 (2d Cir. 2001), the burden was on the defendant to prove, by a preponderance of the evidence, that a downward departure or reduction of his sentence was appropriate, see United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005). Having failed to make such a showing, we find his argument to be without merit.
CONCLUSION
We have considered all of defendant's claims and found them to be without merit. Accordingly, the judgment of the District Court is AFFIRMED.