United States v. Melendez

422 F. App'x 4

• Court: Court of Appeals for the Second Circuit
• Decided: May 11, 2011
• Docket: 09-3200-cr(L), 09-3211-cr(CON)
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Luis Pestaña appeals from a July 17, 2009 judgment of the United States District Court for the Southern District of New York (Keenan, J.) revoking his supervised release and sentencing him to 12 months’ imprisonment for violation of the conditions of his supervised release. In the same proceeding, the district court also sentenced Pestaña to 180 months’ imprisonment, following a guilty plea, for conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Pestaña is foreclosed by an appellate waiver from disputing this latter sentence, but he contends on appeal that his sentence for violating the conditions of his supervised release — which the district court ordered to run consecutively with his other sentence — is substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

Pestaña concedes that his sentence is not procedurally unreasonable, but suggests that his sentence is substantively unreasonable because the court considered the fact that he was on supervised release when both (1) calculating his criminal history and (2) sentencing Pestaña for violations of the terms of his supervised release. Pestana’s dispute is unpersuasive because the Sentencing Guidelines specifically contemplate that such “double counting” will occur. According to a Policy Statement set forth by the Sentencing Commission in the Sentencing Guidelines:

Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release.

U.S. Sentencing Guidelines Manual § 7B1.3(f) (policy statement). A consecutive sentence is appropriate because a sentence for violation of supervised release is “not intended to be a sanction for [the defendant’s] conduct, but rather for the ‘breach of trust’ committed against the District Court.” United States v. Sweeney, 90 F.3d 55, 57 (2d Cir.1996), abrogated on other grounds as recognized in United States v. Fleming, 397 F.3d 95, 99 n. 5 (2d Cir.2005). Accordingly, Pestana’s sentence is not rendered substantively unreasonable based on what Pestaña characterizes as the district court’s “double counting” of his violation of the terms of his supervised release.

Furthermore, the court sentenced Pestaña only to 12 months when the applicable range was 24 to 30 months. Particularly in light of this below-range sentence, Pestaña has not shown that his sentence is substantively unreasonable.

We have considered Pestana’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.