United States v. Diaz, (2nd Cir. 2007)

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05-6429-cr

U n i t e d States v. Diaz

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L IN G S BY SUM M A R Y OR D E R DO N O T HAV E PRECEDENTIAL EFFECT. CITATION TO SUMM A R Y

O R D E R S FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S

L O C A L RULE 0.23 AND FEDERA L RULE OF APPELLA T E PROCEDU R E 32.1. IN A BRIEF OR OTHER

P A P E R IN WHICH A LITIGANT CITES A SUMM A R Y ORDER, IN EACH PARAGRAPH IN WHICH A

C IT A TI O N APPEARS, AT LEAST ONE CITATION MU S T EITHER BE TO THE FEDERAL APPENDIX OR

B E AC C O M P A N I E D B Y T H E NO T A T I O N : " ( S U M M A R Y O R D E R

I S AVAILABLE IN AN ELECTRONIC DATA B A S E WHICH IS PUBLICLY ACCESSIBLE WITHOUT

P A Y M E N T OF FEE (SUCH AS THE DATAB A S E AVAILABLE AT HT T P : / / W W W . C A 2 . U S C O U R T S . G O V /

T H E PARTY CITING THE SUMM A R Y OR D E R M U S T FILE AND SERVE A COPY OF THAT SUMM A R Y

O R D E R TOGETHER WITH THE PA P E R IN WHICH THE SUM M A R Y ORDER IS CITED. IF NO COPY

I S SERVED BY REASON O F THE AVAILABILITY OF THE O R D E R ON SUCH A DA T A B A S E , THE C IT A TI O N MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE C A S E IN WHICH THE ORDER WAS ENTERED. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 1st day of May, two thousand and seven. PRESENT: HON. JOHN M. WALKER, HON. CHESTER J. STRAUB, HON. BARRINGTON D. PARKER, Circuit Judges, United States of America, Appellee, v. No. 05-6429-cr Anthony Diaz, also known as Chuleta, Defendant-Appellant. YU A N C H U N G LEE, of Counsel, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant. DA V I D S. LEIBOWITZ, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Harry Sandick, Assistant United States Attorney, on the brief), New York, NY, for Appellee.

AFTER ARGUMENT AND UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED..

Defendant-appellant Anthony Diaz appeals from a judgment docketed on November 22, 2005 in the District Court for the Southern District of New York (John E. Sprizzo, Judge), sentencing him principally to 135 months' imprisonment upon his plea of guilty to one count of conspiring to distribute and possess with intent to distribute crack cocaine, in violation of 21 U.S.C. 841(b)(1)(A), 846, and three counts of distributing and possessing with intent to distribute various amounts of crack cocaine, in violation of 21U.S.C. §§ 812, 841(a)(1), (b)(1)(A), (b)(1)(B). We assume the parties' familiarity with the balance of facts, procedural history, and specification of issues on appeal.

We conclude that the District Court's sentence was procedurally proper. The District Court did not give the Sentencing Guidelines a presumption of reasonableness, but merely used them as a starting point against which it considered all the other relevant sentencing factors ­ an analytical sequence that we have expressly approved. See United States v. Fernandez, 443 F.3d 19, 34 n.11 (2d Cir. 2006) ("It was not error for Judge Cote to employ the Guidelines range as a start ing point and then to determine whether the arguments presented pursuant to the § 3553(a) factors warranted `lighten[ing]' of or fashioning of `an alteration to,' the advisory Guidelines sentence (or, in other words, imposing a non-Guidelines sentence).") (internal citations omitted).

We also conclude that the District Court properly rejected Diaz's claim that it "had the authority to reject the 100:1 crack/powder cocaine ratio." See United States v. Castillo, 460 F.3d 337 (2d Cir. 2006).

For those reasons, we AFFIRM the judgment of the District Court.

FOR THE COURT: Thomas Asreen, Acting Clerk By: Oliva M. George, Deputy Clerk

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