United States v. Lerebours-Marte , 468 F. App'x 81 ( 2012 )

11-0649-cr
USA v. Lerebours-Marte
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of April, two thousand twelve.
Present:
DENNIS JACOBS,
Chief Judge,
ROBERT A. KATZMANN,
Circuit Judge,
JOHN F. KEENAN,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 11-0649-cr
GIOVANNI LEREBOURS-MARTE, AKA CABALLO,
Defendant-Appellant,
MARQUETY CASTILLO-SOSA, AKA EL VECINO, BIENVENIDO VARGAS, JR., SARAH
LOPEZ, AKA, SARAH VARGAS, AKA SARAH VARGAS TORRES,
Defendants.
________________________________________________
*
The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
For Defendant-Appellant: JAMES M. BRANDEN, Law Office of James M. Branden, New
York, N.Y.
For Appellee: TONI MELE (Susan Corkery, on the brief), Assistant United
States Attorneys, for Loretta E. Lynch, United States Attorney
for the Eastern District of New York, Brooklyn, N.Y.
Appeal from the United States District Court for the Eastern District of New York
(Garaufis, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Giovanni Lerebours-Marte appeals from a February 15, 2011
judgment of conviction of the United States District Court for the Eastern District of New York
(Garaufis, J.), convicting him, following a guilty plea, of conspiracy to distribute one kilogram
or more of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and
attempt to possess one kilogram or more of heroin and five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846. The district court principally sentenced the defendant to 405
months’ imprisonment. On appeal, Lerebours-Marte first contends that his sentence is
procedurally unreasonable because the district court (1) failed to state the reasons for applying a
particular sentence within the Guidelines range pursuant to 18 U.S.C. § 3353(c)(1), and (2) failed
to provide a statement of reasons for the sentence in the written judgment pursuant to 18 U.S.C.
§ 3553(c)(2). He also argues that his sentence is substantively unreasonable. We presume the
parties’ familiarity with the facts and procedural history of this case.
We review a district court’s sentence for “reasonableness, which is ‘akin to review for
abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds
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of allowable discretion, committed an error of law in the course of exercising discretion, or made
a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)
(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). “A district
court commits procedural error where it fails to calculate the Guidelines range (unless omission
of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the
Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a
clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United
States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal citation omitted). Where
the Court determines that there was no procedural error in a district court’s sentencing, it “then
considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard, taking into account the totality of the circumstances.” United States v. Rigas, 583 F.3d
108, 121 (2d Cir. 2009) (internal quotation marks omitted). Although we do not presume that a
sentence within the Guidelines range is reasonable, United States v. Dorvee, 616 F.3d 174, 183
(2d Cir. 2010), a district court’s substantive findings will be set aside only “in exceptional cases
where the trial court’s decision cannot be located within the range of permissible decisions.”
Cavera, 550 F.3d at 189 (internal quotation marks omitted).
We first address the defendant’s contention that the district court committed procedural
error. Section 3553(c) requires a district court to “state in open court the reasons for its
imposition of the particular sentence, and, if the . . . [sentencing] range exceeds 24 months, the
reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c),
(c)(1). If the district court imposes a non-Guidelines sentence, the “reasons must also be stated
with specificity in a statement of reasons form.” Id. § 3553(c)(2). In interpreting § 3553(c)(1),
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we have held that, though a sentencing judge retains discretion in these matters, he must
demonstrate that he has “‘thoughtfully discharged his statutory obligation, with a degree of care
appropriate to the severity of the punishment ultimately selected.’” United States v. Rosa, 11
F.3d 315, 344 (2d Cir. 1993) (quoting United States v. Chartier, 933 F.2d 111, 117 (2d Cir.
1991)).
As an initial matter, because the district court imposed a sentence within the Guidelines
range, the district court was not required to state its reasons for the sentence in the written
judgment. See 18 U.S.C. § 3553(c)(2). Thus, the defendant’s contention that the district court
procedurally erred in failing to state its reasons in a “statement of reasons form,” id., is clearly
without merit.
As to defendant’s argument that the district court did not adequately explain why it chose
to impose the particular Guidelines sentence it did, we conclude that the district court’s
statements sufficiently justify its decision to impose the maximum Guidelines sentence. In
addition to noting that it questioned whether the defendant “was sincere in his efforts to
cooperate,” the district court noted that the defendant was involved “in a very serious, concerted
and dangerous criminal enterprise that could have and may have placed lives in danger.” App.
228-29. It also observed that “[w]ith one more point on the guideline the defendant would be
subject to a guideline range of 360 months to life in prison. So we’re not too far from the max
here under the guidelines.” Id. at 228. It further emphasized the seriousness of defendant’s
crimes when it stated that “[t]he drugs themselves ruined lives and killed people when they are
used and abused,” and that “Congress . . . has said that these crimes are to be treated with the
greatest seriousness because of what they do to the victims of the crimes.” Id. at 229. Finally,
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the district court indicated that “[a]ny crimes that involve the use or availability of guns are
crimes of particularly great danger and significance. I just can’t ignore all of that.” Id. These
statements make clear that the district court believed the defendant’s crimes were extraordinarily
serious and warranted the maximum Guidelines sentence. We thus conclude that the district
court “‘thoughtfully discharged his statutory obligation, with a degree of care appropriate to the
severity of the punishment.’” Rosa, 11 F.3d at 344 (quoting Chartier, 933 F.2d at 117).
Having concluded that the defendant’s sentence is procedurally reasonable, we turn to
whether the sentence is substantively reasonable. The defendant argues that the 405 month
sentence is excessive given that he is non-violent and has a largely favorable criminal and social
history. Specifically, he notes that he has no criminal history aside from a prior arrest for driving
while intoxicated, he grew up in poverty and was forced into prostitution as a young teenager,
and he has managed to find work and provide for his family. Even if some of these factors may
militate in the defendant’s favor, the district court was entitled to conclude that other factors --
such as the tremendous quantity of drugs involved, the use of firearms, and the defendant’s
involvement as the leader of the operation -- warranted a harsher sentence. Moreover, while
Lerebours-Marte relies on the assertion that the criminal conspiracy was short-lived, there is no
indication that he stopped his illegal activity for any reason other than his arrest. That the
defendant’s co-conspirator received a lesser sentence also does not support an inference that his
sentence was substantively unreasonable. Lerebours-Marte received a two-level enhancement
for his leadership role in the conspiracy, and also had a greater criminal history level and was
responsible for more narcotics. Accordingly, we conclude that the defendant’s Guidelines
sentence falls comfortably “within the range of permissible decisions,” Cavera, 550 F.3d at 190
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(internal quotation marks omitted), and thus reject the defendant’s challenge to the substantive
reasonableness of his sentence.
We have considered all of the defendant’s remaining arguments and find them to be
without merit. Accordingly, for the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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