Opinion
No. 10-1982-cr.
May 23, 2011.
Appeal from the United States District Court for the Eastern District of New York (Feuerstein, J.).
ON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Beverly Van Ness, New York, N.Y., for Appellant.
Nicole Boeckmann, Assistant United States Attorney for the Eastern District of New York (Loretta E. Lynch, United States Attorney for the Eastern District of New York, David C. James, Assistant United States Attorney for the Eastern District of New York, on the brief), for Appellee.
Present: JOSÉPH M. McLAUGHLIN, ROSEMARY S. POOLER, B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Domingo Rodriguez appeals from an amended judgment, entered May 14, 2010, in the United States District Court for the Eastern District of New York (Feuerstein, J.) sentencing him on remand to a term of 86 months imprisonment and three years of supervised release. We assume the parties' familiarity with the underlying facts, procedural history, and specification of issues for review.
Rodriguez and his co-defendant, Jorge Garcia-Reynoso, were convicted in 2008 of the substantive offense of hostage taking 18 U.S.C. § 1203(a), conspiracy to transport an illegal alien for commercial advantage, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and the substantive offense of transporting an illegal alien, 8 U.S.C. § 1324(a)(1)(A)(ii). On appeal, we vacated the hostage taking conviction and remanded to the district court for resentencing on the remaining counts. United States v. Rodriguez, 587 F.3d 573, 580 (2d, Cir. 2009).
On remand, the PSR recommended an adjusted offense level of 14, yielding a Guidelines sentencing range of 15 to 21 months. The defense argued for a sentence of time served, which at that point was 63 months. The Government sought an upward departure sentence of 120 months. The district court accepted the PSR's recommendation to set the adjusted offense level at 14.
The district court stated it believed Rodriguez had displayed "a consistent disregard and [dis] respect for the law and those who must enforce the law." Finding Rodriguez demonstrated a lack of remorse, the district court imposed an above-Guidelines sentence of 86 months.
Rodriguez limits his appeal to the substantive reasonableness of the sentence, which we review of an abuse of discretion. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008). As we explained in Cavera, "we will not substitute our own judgment for the district court's on the question of what is sufficient to meet the § 3553(a) considerations in any particular case. We will instead set aside a district court's substantive determination only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions." Id. (internal quotation marks and citation omitted).
The record reflects that the district court considered the appropriate Section 3553(a) factors, and simply did not accord the same weight Rodriguez did for "positive facts" about his history, such as his work record, financial support of his family and good conduct in prison. The district court simply believed that Rodriguez had displayed "a consistent disregard and respect for the law," and sentenced him accordingly. There is no abuse of discretion.
Accordingly, the judgment of the district court hereby is AFFIRMED.