USA v. Zapata (Londono-Tabarez), (2nd Cir. 2007)

Docket Number: 05-3848

Parts: SUM

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UNIT ED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R u l i n g s by summary order do not have precedential effect. Citation to summary orders

f i le d after January 1, 2007, is permitted and is governed by this court's Local Rule 0.23

a n d Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a

l it i ga n t cites a summary order, in each paragraph in which a citation appears, at least

o n e citation must either be to the Federal Appendix or be accompanied by the notation:

" ( s u m m a r y order)." Unless the summary order is available in an electronic database

w h i c h is publicly accessible without payment of fee (such as the database available at

http://w w w . ca 2 . u sco u rts. g o v /), the party citing the summary order must file and serve

a copy of that summary order together with the paper in w hich the summary order is

c i te d . If no copy is served by reason of the availability of the order on such a database,

t h e citation must include reference to that database and the docket number of the case

i n 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, at 500 Pearl Street, in the City of New York,

on the 2nd day of February, two thousand seven.

Present: HON. ROBERT A. KATZMANN,

HON . PETER W. HALL,

Circuit Judges,

HON. DAVID G. TRAGER, District Judge.* UNITED STATES OF AMERICA, Appellee, No. 05-3848-cr -v- MARIO LONDONO-TABAREZ, * The Honorable David G. Trager, United States District Judge for the Eastern District of New York, sitting by designation. Defendant-Appellant.

For Appellee: Andrew L. Fish, Celeste L. Koeleveld, Assistant United States Attorneys, for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY For Defendant-Appellant: Lau rie S. Hershey, Manhasset, NY Appeal from the United States District Court for the Southern District of New York (Batts, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant was convicted, after a jury trial, of conspiracy to distribute five kilograms or more of cocaine in violation of 21U.S.C. § 846. At the sentencing hearing, on September 24, 2002, the district court determined that the quantity of cocaine in the conspiracy was more than 50 kilograms. Defendant's Guidelines range was 188 to 235 months imprisonment and the district court sentenced him to 188 months' incarceration, five years' supervised release, and a $100 special assessment. Defendant appealed his conviction and this Court affirmed. United States v. Londono-Tabarez, 121 Fed. Appx. 882 (2d Cir. 2005). Relevant to this appeal is our holding that the district court correctly found that defendant was engaged in a conspiracy to distribute more than 50 kilograms of cocaine. Id. at 885.

We then remanded this case pursuant to United Sates v. Booker, 543 U.S. 220 (2005), and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). On remand, defendant argued that our findings that the errors at trial were harmless "pertained only to trial proof . . . not to sentencing," and invited the district court to revisit the evidence supporting the 50 kilogram determination, excluding the evidence admitted in error at trial. In an order dated June 14, 2005, the district court, "[u]pon consideration of the sentencing factors set forth in 18U.S.C. § 3553(a), all the materials that were submitted to the Court by defense counsel prior to sentencing, and the trial transcripts," declined to resentence defendant. This appeal followed.

After Booker, we review a district court's sentence for "reasonableness." Crosby, 397 F.3d at 113. We have held that "a sentence will satisfy the requirements of Booker and the Sixth Amendment if the sentencing judge (1) calculates the relevant Guidelines range, including any applicable departure under the Guidelines system; (2) considers the calculated Guidelines range, along with the other § 3553(a) factors; and (3) imposes a reasonable sentence." United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006). While, "in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances," there is no "presumption, rebuttable or otherwise," that a Guidelines sentence is reasonable. Id. at 27.

Defendant claims that the district court's failure to "parse[] out the various sentencing factors of 18U.S.C. § 3553(a) in [its] decision declining resentencing" amounted to procedural error.

This argument is without merit as a district court does not have to "precisely identify either the factors set forth in § 3553(a) or specific arguments bearing on the implementation of those factors in order to comply with her duty to consider all the § 3553(a) factors along with the Guidelines applicable range." Fernandez, 443 F.3d at 29. The record is devoid of evidence that the district court misunderstood the relevant statutory requirement or the Guidelines range, thus we presume that the court "faithfully discharged [its] duty to consider the statutory factors." Id. at 30.

Defendant next argues that the length of the sentence is unreasonable because the district court failed to "re-examine the record through the prism of this Court's decision [in his first appeal], before declining to resentence the defendant," arguing that the errors we found in the trial draw into question the validity of the drug quantity determination. Furthermore, the defendant contends that the sentence is unreasonably long, and a reasonable sentence would have been the mandatory minimum term of 120 months, particularly given his family circumstances.

There is no question that the defendant was found guilty by a jury of conspiracy to traffic in five kilograms of cocaine. As mentioned above, this Court already upheld both the defendant's conviction and the district court's determination that, for sentencing purposes, the defendant conspired to traffic in 50 kilograms of cocaine, despite any errors at trial. Londono-Tabarez, 121 Fed. Appx. at 885. Furthermore, while defendant's family circumstances are tragic, given that defendant conspired to sell a significant amount of a dangerous drug, we cannot say that a sentence at the bottom of the applicable Guidelines range is unreasonable.

The judgment of the district court is therefore AFFIRMED.

FOR THE COURT: THOMAS ASREEN, ACTING CLERK By: