United States v. Branford

507 F. App'x 96

• Court: Court of Appeals for the Second Circuit
• Decided: January 18, 2013
• Docket: 11-4240 (L)
• Status: Unpublished

Opinion

Present: DENNIS JACOBS, Chief Judge, GUIDO CALABRESI and ROBERT D. SACK, Circuit Judges.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Defendants Tyrone Felder and Enal C. LaRose challenge the substantive reasonableness of a sentence imposed by the United States District Court for the Northern District of New York (Mordue, J.) after they pled guilty to conspiracy to possess with intent to distribute cocaine and crack cocaine. On September 29, 2011, the court sentenced LaRose to 151 months of imprisonment and five years of supervised release. On February 16, 2012, the court sentenced Felder to 262 months of imprisonment, to be followed, by eight years of supervised release. We assume the parties’ familiarity with the underlying-facts, the procedural history, and the issues presented for review.

The substantive reasonableness of a sentence is reviewed for abuse of discretion. United States v. Hasan, 586 F.3d 161, 167-68 (2d Cir.2009). A substantive reasonableness inquiry must “take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (in banc).

The Guidelines range for Felder, a career offender with two prior felony convictions, was 262 to 327 months. The sentence was therefore at the low end of this Guidelines range, at 262 months. On appeal, Felder argues that the district court should have imposed a sentence within the Guidelines range (151 to 188 months) that would have applied absent his career offender status.

However, Felder does not challenge his career offender status, nor does he point to any procedural flaws committed by the district court. Instead, he argues that the court should have exercised discretion under 18 U.S.C. § 3553 to recognize Felder’s troubled upbringing, his inferior role in the criminal operation, and his good faith efforts to keep legitimate employment. He also asserts that the district court gave excessive weight to the fact that he cooked crack cocaine. Finally, he points to the disparities between his sentence in this case and his prior drug offense sentences, and between his sentence and those of his co-defendants.

While such factors may influence a trial judge’s sentencing determination, they do not mandate vacatur here. The Court will “set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located- within the range of permissible decisions.” Cavera, 550 F.3dat 189 (internal quotation marks and citation omitted). The district court’s sentence was well within the range of permissible decisions.

Counsel for LaRose has submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous appellate issue. Counsel suggested that LaRose had received a sentence of 120 months and that, as a result, LaRose was bound by the waiver of his right to appeal any sentence at or below 120 months imprisonment, as set forth in his plea agreement. Anders Br., Counsel for LaRose, 9. But LaRose’s sentence was 151 months. Consequently, there was no waiver. The brief does not thereafter adequately discuss the presence or absence of any non-frivolous issue.

Nevertheless, after examining-the record independently and with care, we have not been able to find any nonfrivolous issue. LaRose argues pro se that his attorney and the government misrepresented to him that he would receive a sentence of 120 months or less. Yet, LaRose twice affirmed that he had not been made any promises, other than those .in the plea agreement, that induced him to plead guilty. His appeal is therefore without merit.

For the foregoing reasons, and finding no merit in appellants’ other arguments, we hereby GRANT the motion to withdraw filed by LaRose’s counsel (and the government’s motion for summary affir-mance). The judgment of the district court is hereby AFFIRMED. Any application for fees under the Criminal Justice Act, 18 U.S.C. § 3006A, by LaRose’s counsel is DENIED.