Opinion
No. 07-1536-cr.
November 25, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.
For Defendant-Appellant: GEORGIA J. HINDE, Law Office of Georgia J. Hinde, New York, New York.
For Appellee: MARISSA B. MOLÉ, Assistant United States Attorney (Diane Guajarati, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, New York.
PRESENT: HON. ROGER J. MINER, HON. SONIA SOTOMAYOR, HON. REENA RAGGI, Circuit Judges.
Defendant-appellant Luis Cosme appeals from a judgment of conviction, entered on April 2, 2007, in the United States District Court for the Southern District of New York (Hellerstein, J.). Cosme pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced principally to fifty months of imprisonment and three years of supervised release. We assume the parties' familiarity with the underlying facts and procedural history of the case.
Cosme argues that the district court misunderstood the full scope of its sentencing authority because it overlooked a relevant downward departure pursuant to U.S.S.G. § 5K2.11 ("Lesser Harms"). He likens his case to United States v. Clark, 128 F.3d 122 (2d Cir. 1997), where this Court remanded for resentencing because there existed substantial uncertainty over whether a district court had understood its authority to adjust a sentencing range downward pursuant to § 5K2.11. Id. at 123-24. But the record in this case demonstrates that the district court fully understood its sentencing authority and varied from the Guidelines based on the purportedly less harmful nature of Cosme's offense. In particular, the district court declined in its discretion to apply a relevant enhancement for an obliterated serial number because it partially believed Cosme's mitigating testimony that he had committed a crime in order to avoid a perceived greater harm. By not applying the enhancement, the district court reduced the sentencing range from 57-71 months to 46-57 months. Regardless of whether the district court was aware of its specific authority to depart under § 5K2.11, it accounted for the "lesser harm" reasoning underlying that Guideline. Moreover, there is no indication in the record that the district court sought further downward adjustments, particularly because the district court sentenced Cosme towards the middle, instead of at the bottom, of the applied sentencing range. Accordingly, we do not conclude under plain error review that the district judge misapprehended the scope of his sentencing authority.
We have reviewed defendant-appellant's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.