United States v. Napper

Second Circuit

United States v. Napper

385 F. App'x 57

Court of Appeals for the Second Circuit·Decided July 20, 2010·No. 09-3366-CR·Unpublished

Opinion

SUMMARY ORDER

Appellant Troy Napper appeals from a judgment of the United States District Court for the District of Connecticut (Ar-terton, J.), which sentenced Napper principally to 188 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review a district court’s sentencing decision under a “deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We examine the sentence for reasonableness, both procedural and substantive. United States v. Avello-Alvarez, 430 F.3d 543, 545 (2d Cir.2005).

To the extent that Napper’s argument may be construed to challenge the procedural reasonableness of his sentence, he presents no evidence that the prosecution’s decision to file a 21 U.S.C. § 851 notice was based on improper factors. See United States v. Sanchez, 517 F.3d 651, 671 (2d Cir.2008). Nor does he present sufficient evidence that there exists a geographical variance in the volume of filings of § 851 notices such that there is a sentencing disparity between similarly-situated defendants. Napper analogizes the alleged variance in filing of § 851 notices with geo *58 graphically-limited “fast track” programs authorized in U.S.S.G. § 5K3.1. We have expressly rejected that differences between sentences in jurisdictions with and without a “fast track” program render a sentence unreasonable. See United States v. Mejia, 461 F.3d 158, 164 (2d Cir.2006).

Napper claims that his below-Guidelines sentence was substantively unreasonable because the district court failed to consider adequately the factors detailed in 18 U.S.C. § 3553(a) and thus his sentence was “greater than necessary.” Our review of the sentencing hearing belies this position. Though Napper himself would have weighed the factors differently, that does not mean the district court abused its discretion when it conducted its balancing.

The judgment of the district court is hereby AFFIRMED.

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SUMMARY ORDER

Appellant Troy Napper appeals from a judgment of the United States District Court for the District of Connecticut (Ar-terton, J.), which sentenced Napper principally to 188 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

We review a district court’s sentencing decision under a “deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We examine the sentence for reasonableness, both procedural and substantive. United States v. Avello-Alvarez, 430 F.3d 543, 545 (2d Cir.2005).

To the extent that Napper’s argument may be construed to challenge the procedural reasonableness of his sentence, he presents no evidence that the prosecution’s decision to file a 21 U.S.C. § 851 notice was based on improper factors. See United States v. Sanchez, 517 F.3d 651, 671 (2d Cir.2008). Nor does he present sufficient evidence that there exists a geographical variance in the volume of filings of § 851 notices such that there is a sentencing disparity between similarly-situated defendants. Napper analogizes the alleged variance in filing of § 851 notices with geo *58 graphically-limited “fast track” programs authorized in U.S.S.G. § 5K3.1. We have expressly rejected that differences between sentences in jurisdictions with and without a “fast track” program render a sentence unreasonable. See United States v. Mejia, 461 F.3d 158, 164 (2d Cir.2006).

Napper claims that his below-Guidelines sentence was substantively unreasonable because the district court failed to consider adequately the factors detailed in 18 U.S.C. § 3553(a) and thus his sentence was “greater than necessary.” Our review of the sentencing hearing belies this position. Though Napper himself would have weighed the factors differently, that does not mean the district court abused its discretion when it conducted its balancing.

The judgment of the district court is hereby AFFIRMED.

United States v. Napper, 385 F. App'x 57 (2d Cir. 2010).

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