Opinion
No. 06-4030-cr.
November 1, 2007.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.
For Defendant-Appellant: MAURICE H. SERCARZ, Sercarz Riopelle, LLP, New York, NY.
For Appellee: Michael J. Garcia, United States Attorney for the Southern District of New York; Marissa Molé, Assistant United States Attorney; Katherine Polk Failla, Assistant United States Attorney, New York, NY.
Present:HON. SONIA SOTOMAYOR, HON. BARRINGTON D. PARKER, HON. PETER W. HALL, Circuit Judges.
Defendant-appellant Luis Ortiz ("Ortiz") appeals from an August 22, 2006 judgment of the United States District Court for the Southern District of New York (Cote, J.), convicting him, following a guilty plea, of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and sentencing him principally to the statutory maximum of ten-years imprisonment. The district court ordered Ortiz to serve five years of that sentence concurrently with a previously imposed fifteen-year state sentence, and to serve the remaining five years consecutively to the state sentence. We assume the parties' familiarity with the underlying facts and relevant procedural history of this case.
Ortiz does not challenge the length of the district court's sentence, which was more than double the high end of the 46-to-57 month Sentencing Guidelines range. Rather, his sole challenge on appeal is that the sentence was unreasonable insofar as it failed to account for the Guidelines' policy statements concerning the imposition of concurrent and consecutive sentences under U.S.S.G. § 5G1.3(c). More specifically, he claims that he was sentenced to more collective time in prison, i.e., twenty years, than he would have received had his state and federal crimes been sentenced as one federal case, thus resulting in an "unwarranted disparity" in sentencing. See U.S.S.G. § 5G1.3(c) cmt. n. 3(A). He also claims that the district court failed to properly consider all of the 18 U.S.C. § 3553(a) sentencing factors, instead relying exclusively on his personal characteristics and criminal record, while giving mere "lip service" to the other § 3553(a) factors. See id. His claims are without merit.
We review the district court's sentence for reasonableness, see United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006), and we will not overturn a district court's sentencing under § 5G1.3(c) "absent an abuse of discretion," United States v. Brennan, 395 F.3d 59, 66 (2d Cir. 2005) (quotation marks omitted). Leaving aside the accuracy of Ortiz's hypothetical calculations on the applicable Guidelines range had his state and federal crimes been sentenced as one federal case, we find no abuse of discretion in the district court's decision to upwardly depart from the Guidelines range under U.S.S.G. § 4A1.3, and to impose half of the resulting sentence consecutively to Ortiz's state-law sentence. Contrary to Ortiz's suggestion, the record indicates that the district court fully considered the § 3553(a) factors, including the seriousness of the defendant's prior convictions, his age, and his commission of the at-issue firearm offense while out on bail on a separate offense involving a firearm. Because Ortiz has failed to meet his burden of showing that the district court "exceeded the bounds of allowable discretion[,] . . . committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact," see United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotation marks omitted), we reject his sentencing claim.
Accordingly, the district court's judgment is AFFIRMED.