United States v. Napper , 385 F. App'x 57 ( 2010 )

09-3366-cr
U.S. v. Napper
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20 th day of July, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 PETER W. HALL,
8 Circuit Judges,
9 RICHARD W. GOLDBERG,
10 Judge. *
11
12
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 -v.- 09-3366-CR
19
20 TROY NAPPER, a/k/a TROY MOTE,
21
22 Defendant-Appellant.
23
24
25
26
*
The Honorable Richard W. Goldberg, of the United States Court of
International Trade, sitting by designation.
1 FOR APPELLANT: GARY D. WEINBERGER, Assistant Federal
2 Defender (Thomas McCudden, on the brief)
3 for Thomas G. Dennis, Federal Defender,
4 Hartford, CT.
5
6 FOR APPELLEE: DAVID E. NOVICK, Assistant United States
7 Attorney (William J. Nardini, Assistant
8 United States Attorney, of counsel), for
9 David B. Fein, United States Attorney for
10 the District of Connecticut, New Haven,
11 CT.
12
13 Appeal from the United States District Court for the
14 District of Connecticut (Arterton, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of said district court be
18 AFFIRMED.
19 Appellant Troy Napper appeals from a judgment of the
20 United States District Court for the District of Connecticut
21 (Arterton, J.), which sentenced Napper principally to 188
22 months’ imprisonment. We assume the parties’ familiarity
23 with the underlying facts, the procedural history, and the
24 issues presented for review.
25 We review a district court’s sentencing decision under
26 a “deferential abuse-of-discretion standard.” United States
27 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (quoting Gall v.
28 United States, 552 U.S. 38, 41 (2007)). We examine the
29 sentence for reasonableness, both procedural and
30 substantive. United States v. Avello-Alvarez, 430 F.3d 543,
31 545 (2d Cir. 2005).
1 To the extent that Napper’s argument may be construed
2 to challenge the procedural reasonableness of his sentence,
3 he presents no evidence that the prosecution’s decision to
4 file a 21 U.S.C. § 851 notice was based on improper factors.
5 See United States v. Sanchez, 517 F.3d 651, 671 (2d Cir.
6 2008). Nor does he present sufficient evidence that there
7 exists a geographical variance in the volume of filings of §
8 851 notices such that there is a sentencing disparity
9 between similarly-situated defendants. Napper analogizes
10 the alleged variance in filing of § 851 notices with
11 geographically-limited “fast track” programs authorized in
12 U.S.S.G. § 5K3.1. We have expressly rejected that
13 differences between sentences in jurisdictions with and
14 without a “fast track” program render a sentence
15 unreasonable. See United States v. Mejia, 461 F.3d 158, 164
16 (2d Cir. 2006).
17 Napper claims that his below-Guidelines sentence was
18 substantively unreasonable because the district court failed
19 to consider adequately the factors detailed in 18 U.S.C. §
20 3553(a) and thus his sentence was “greater than necessary.”
21 Our review of the sentencing hearing belies this position.
22 Though Napper himself would have weighed the factors
23 differently, that does not mean the district court abused
1 its discretion when it conducted its balancing.
2 The judgment of the district court is hereby AFFIRMED.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
8
4