Opinion
No. 10-863-cr.
April 13, 2011.
Appeal from the United States District Court for the Southern District of New York (Victor Marrero, Judge).
Gerald Di Chiara, The Law Offices of Gerald Di Chiara, New York, NY, for Appellant.
Daniel L. Stein (Katherine Polk Failla, on the brief), Assistant United States Attorneys, of Counsel, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on March 8, 2010, is AFFIRMED.
Defendant Roberto Soto-Beltran stands convicted, on pleas of guilty, of conspiracy to import more than one kilogram of heroin and more than five kilograms of cocaine into the United States, see 21 U.S.C. §§ 952(a), 960(b)(1), 963, and conspiracy to distribute and to possess with the intent to distribute more than 100 grams of heroin and more than 500 grams of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846. On appeal, Soto-Beltran argues that his below-Guidelines sentence of concurrent terms of 120 months' imprisonment is unreasonable. See United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Reasonableness review is akin to that for abuse of discretion, see United States v. Cavera, 550 F.3d 180, 187-89 (2d Cir. 2008) ( en banc), and considers "both the length of the sentence (substantive reasonableness) and the procedures used to arrive at the sentence (procedural reasonableness)," United States v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
Soto-Beltran contends that his sentence is unreasonable when compared to the 9-month term of incarceration imposed on his wife, Viviana Gil, to whom he insists he was identically situated except as to gender. Soto-Beltran further contends that his sentence is excessive relative to other co-defendants who received similar sentences despite playing more significant roles than he had in the charged conspiracy. We are not persuaded.
While a sentencing judge "may" consider sentencing disparities among co-defendants under 18 U.S.C. § 3553(a)(6), United States v. Johnson, 567 F.3d 40, 54 (2d Cir. 2009), where, as here, the district judge has done so, we will not second guess his assessment of the relevant facts absent clear error in his assignment of weight to these facts, see United States v. Cavern, 550 F.3d at 193; United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006).
Here, the record amply supported the district court's decision to treat Soto-Beltran differently from his wife. Not only did he recruit her into the criminal scheme, she mitigated her criminal conduct with substantial assistance. See United States v. Fernandez, 443 F.3d at 32. Although a prosecutor's discretion in deciding whether to make a substantial-assistance motion is subject to constitutional limitations, mere generalized allegations of an improper prosecutorial motive are insufficient, particularly when raised for the first time on appeal. See Wade v. United States, 504 U.S. 181, 186, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). Soto-Beltran has not made the required "substantial threshold showing" of unconstitutional motive. United States v. Morgan, 386 F.3d 376, 382-83 (2d Cir. 2004) (internal quotation marks omitted). Indeed, the record is to the contrary: the government explained that Gil was chosen as a cooperator not because of her gender, but because she was granted bail pending trial, putting her in a position to cooperate actively with investigators. Not only did the government have no role in Gil's being admitted to bail; it actively opposed her release. With respect to Soto-Beltran's other co-defendants, the record supports the district court's determination that Soto-Beltran's active and long-standing role in the massive drug scheme warranted a sentence comparable to that imposed on these co-defendants.
In sum, we identify no lack of procedural or substantive reasonableness in the challenged sentence.
We have considered Soto-Beltran's other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of conviction.