Opinion
No. 08-4897-cr.
December 10, 2009.
Appeal from the United States District Court for the Southern District of New York (Swain, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court entered October 1, 2008, is AFFIRMED.
Peter F. Langrock and Mitchell L. Pearl, Langrock Sperry Wool, LLP, New York, NY, for Defendant-Appellant Carlos Manuel Valdez.
Howard S. Master and Katherine Polk Failla, Assistant United States Attorneys, of counsel, for Lev L. Dassin, United States Attorney, Southern District of New York, New York, NY, for Appellee.
Present: ROBERT A. KATZMANN, B.D. PARKER, and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Carlos Manuel Valdez appeals from a judgment of the United States District Court for the Southern District of New York (Swain, J.), entered September 30, 2008, convicting him, following a plea of guilty, of illegally re-entering the United States after being convicted of an aggravated felony, and sentencing him principally to 70 months' imprisonment. We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal.
Valdez challenges the sentence imposed by the district court on the grounds that the sentencing judge failed to treat the Sentencing Guidelines as advisory only, improperly treated the sentencing range under the Guidelines as presumptively reasonable, and failed overall to impose a reasonable sentence under the circumstances of the case. In reviewing sentencing proceedings, we first ascertain whether the district court complied with the applicable procedural requirements; if we determine that all procedural requirements are met, we review the district court's substantive determination under a deferential abuse-of-discretion standard. United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008). Procedural error is committed if the district court, inter alia, treats the Sentencing Guidelines as mandatory, fails to consider the factors set forth in 18 U.S.C. § 3553(a), or fails to adequately explain its chosen sentence. Id. at 190.
Valdez asserts that the district court failed to treat the Guidelines as advisory only, but his argument rests on a strained interpretation of certain phrases used by the sentencing judge (such as "appropriate basis for departure" A 20) in determining the appropriate calculation of his sentencing range under the Guidelines. The transcript of the sentencing proceedings as a whole demonstrates that the district court appropriately determined the applicable Guidelines range and the availability of any departure authority, see United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005), before going on to determine that a sentence at the bottom of the Guidelines range was appropriate in light of the factors named in § 3553(a).
Nor does the district court's disagreement with Valdez's argument that a below-Guidelines sentence was appropriate because the Guidelines calculation "double counted" his prior criminal convictions indicate that the district court inappropriately failed to regard the Guidelines as advisory or committed a procedural or substantive error of any kind. "It is well-established in this Circuit that a district court does not err when it uses a prior offense to calculate both the offense level and the criminal history category to determine the correct Guidelines range in unlawful reentry cases." United States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006) (emphasis in original). The same can be said of the district court's disagreement with Valdez's argument that imposing a Guidelines sentence creates an unwanted disparity between him and defendants convicted of unlawful reentry in jurisdictions that have "fast track" programs, in which such defendants receive reduced sentences in exchange for agreeing to quick, uncontested removal from the United States, see id. at 523 n. 7. Again, we have specifically held that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006). In sum, the district court thoroughly addressed Valdez's arguments on these points and fully set forth its reasons for sentencing him, in light of all of the relevant factors, to 70 months' imprisonment.
We have considered Valdez's other arguments and find them without merit. For the foregoing reasons, we AFFIRM the judgment of the district court.