Opinion
No. 06-1585-cr.
October 5, 2007.
Appeal from the United States District Court for the Southern District of New York (Casey, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREEDthat the judgment and sentence of said District Court be and it hereby is AFFIRMED.
Appearing for Appellant: Robert J. Boyle, New York, NY.
Appearing for Appellee: Marcia S. Cohen, Assistant United States Attorney, for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY.
Present: HON. JOSEPH M. McLAUGHLIN, HON. ROSEMARY S. POOLER, HON. REENA RAGGI, Circuit Judges.
Defendant-Appellant appeals from an order entered on March 24, 2006, in the United States District Court for the Southern District of New York by the Honorable Richard Conway Casey, United States District Court Judge, declining to resentence Leon after remand to the district court pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The defendant makes two arguments: first, that the district court's failure to accord him a reduction under United States Sentencing Guideline § 3B1.2(b) for being a `minor participant' renders his sentence procedurally unreasonable, and second, that even if the Guidelines were correctly calculated, the 135-month prison term that he received is substantively unreasonable in light of United States v. Booker, 543 U.S. 220 (2005) and the factors outlined in 18 U.S.C. § 3553(a). We assume the parties' familiarity with the facts, proceedings below, and specification of appellate issues.
Leon first contends that the district court made a procedural error in failing to give him a reduction for his `minor role' under U.S.S.G. § 3B1.2(b), which would also result in an additional reduction to the Defendant's base offense level under U.S.S.G. § 2D1.1(a)(3). We apply de novo review to the legal questions regarding the application of the Sentencing Guidelines. United States v. Jolly, 102 F.3d 46, 48 (2d Cir. 1996). In reviewing a sentencing court's calculations under the Guidelines, an appellate court must "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e);United States v. Fritzson, 979 F.2d 21, 22 (2d Cir. 2002). We review the district court's findings of fact for clear error. See United States v. Farah, 991 F.2d 1065, 1068 (2d Cir. 1993). A finding is clearly erroneous if "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); United States v. Kwok Ching Yu, 285 F.3d 192 (2d Cir. 2002). In applying these standards in the context of sentencing, we are mindful that "[a] sentencing court's assessment of the defendant's role in criminal activity is highly fact-specific and depends upon the nature of the defendant's relationship to other participants, the importance of the defendant's actions to the success of the venture, and the defendant's awareness of the nature and scope of the criminal enterprise." United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001).
Section 3B1.2 provides an adjustment for a defendant "who plays a part in committing the offense that makes him substantially less culpable than the average participant." U.S.S.G. § 3B1.2 cmt. n. 3(A). The burden of proof to establish that a defendant qualifies for a minor role adjustment is on the defendant, United States v. Ravelo, 370 F.3d 266, 269 (2d Cir. 2004), and a defendant must prove by a preponderance of the evidence that she is entitled to a minor role adjustment. United States v. Castano, 234 F.3d 111, 113 (2d Cir. 2000). The Guidelines make clear that a § 3B1.2 downward adjustment is intended to be used infrequently, U.S.S.G. § 3B1.2 cmt. n. 4, and further that applying this adjustment "involves a determination that is heavily dependent upon the facts of a particular case. As with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant's bare assertion, that such a role adjustment is warranted." U.S.S.G. § 3B1.2 cmt. n. 3(C). Furthermore, we have held that the fact that a defendant played a minimal or minor role in his offense "vis-a-vis the role of his co-conspirators is insufficient, in and of itself, to justify a [mitigating role] reduction." United States v. Adjmal, 67 F.3d 12, 18 (2d Cir. 1995). And, this court has repeatedly upheld the denial of mitigating role adjustments, even to defendants who serve as brokers or couriers for relatively small drug transactions. See, e.g., United States v. Imtiaz, 81 F.3d 262, 265 (2d Cir. 1996) (per curiam); United States v. Garcia, 920 F.2d 153, 154-55 (2d Cir. 1990); United States v. Adames, 901 F.2d 11, 12 (2d Cir. 1990). In this case, the district court made clear that its conclusion not to include the adjustment was based on a complete examination of the facts, and particularly on the fact that this drug transaction involved such a large quantity of drugs, that Leon was well aware that he was being paid to aid in a drug transaction, and finally that Leon performed the exact same function as one of his two co-conspirators, Joel Pena. Given the great deference that we give to a district court's findings regarding U.S.S.G. § 3B1.2(b) adjustments, and that factual determinations are reviewable for clear error only, the district court's failure to grant such an adjustment in this case is not reversible.
Second, Leon argues that the 135-month sentence imposed by the district court was substantively unreasonable. United States v. Booker, 543 U.S. 220, 264 (2005). We review sentences for unreasonableness.United States v. Fernandez, 443 F.3d 19, 25 (2d Cir. 2006). A sentence will satisfy the requirements of Booker and the Sixth Amendment if a sentencing judge 1) calculates the relevant Guidelines range, including any applicable departure under the Guidelines system; 2) considers the calculated Guideline range, along with the other § 3553 factors; and 3) imposes a reasonable sentence. Crosby, 397 F.3d at 113; Fernandez, 443 F.3d at 26. In this case, Leon's sentence fell within the applicable Guideline range. While the Court does not presume that a Guideline sentence, without more, is reasonable, Fernandez, 443 F.3d at 27, the Court also does not require that a sentencing judge precisely identify either the factors set forth in § 3553(a) or specific arguments bearing on the implementation of those factors in order to comply with her duty to consider all the § 3553(a) factors along with the Guidelines applicable range. Id. at 28. "As long as the judge is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration has occurred." Id. at 29. "Accordingly we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider statutory factors." Id. Finally, "the requirement that a sentencing judge consider a § 3553(a) factor does not mandate that a defendant actually be granted `credit' under that factor, and the weight to be afforded any given argument made pursuant to one of the § 3553(a) factors is beyond our review, as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented." Id. at 43.
In this case, Leon's sentence was remanded to the district court post-Booker for reasonableness review under Crosby. While the district court's review under Crosby was brief, this Court has rejected the idea that the district court must spell out its reasons and considerations of the factors under § 3553(a). Fernandez, 443 F.3d at 28. Because of the highly deferential standard applicable in reasonableness review, and because the district court made clear in its review that it was considering the record and § 3553(a) factors in making its sentencing determination and imposed a sentence at the low end of the Guidelines range, Leon's argument that the district court imposed an unreasonable sentence fails.
For the reasons stated above, the sentence imposed by the district court is hereby AFFIRMED.