12-45-cr
United States v. Barquet

                UNITED STATES COURT OF APPEALS
                    FOR THE SECOND CIRCUIT

                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”).    A PARTY CITING TO A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
          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 4th day of December, two thousand twelve.

PRESENT:   DENNY CHIN,
           RAYMOND J. LOHIER, JR.,
                     Circuit Judges,
           PAUL G. GARDEPHE,
                     District Judge.*

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UNITED STATES OF AMERICA,
               Appellee,

                -v.-                          12-45-cr

ROBERTO CARLOS BARQUET,
               Defendant-Appellant.

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FOR APPELLEE:                  Sarah E. Paul, Brent S. Wible,
                               Assistant United States Attorneys,
                               for Preet Bharara, United States
                               Attorney for the Southern District
                               of New York, New York, New York.




     *
          The Honorable Paul G. Gardephe, of the United States
District Court for the Southern District of New York, sitting by
designation.
FOR DEFENDANT-APPELLANT:       James M. Branden, Law Office of
                               James M. Branden, New York, New
                               York.

          Appeal from the United States District Court for the

Southern District of New York (Hellerstein, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Defendant-appellant Roberto Carlos Barquet appeals from

a judgment entered December 28, 2011, of the United States

District Court for the Southern District of New York

(Hellerstein, J.).   After Barquet pled guilty to conspiracy to

distribute heroin pursuant to 21 U.S.C. § 846, the district court

sentenced him principally to forty-six months' imprisonment.

Barquet challenges this sentence on both procedural and

substantive grounds.1   We assume the parties' familiarity with

the underlying facts, the procedural history of the case, and the

issues on appeal.

          We review a sentence imposed by a district court for

reasonableness.   United States v. Cavera, 550 F.3d 180, 189-90
(2d Cir. 2008) (en banc).   "Reasonableness review requires an

examination of the length of the sentence (substantive

reasonableness) as well as the procedure employed in arriving at

the sentence (procedural reasonableness)."   United States v.

Johnson, 567 F.3d 40, 51 (2d Cir. 2009).

     1
          Barquet's brief frames this appeal as one of
substantive reasonableness. Because, however, he also alleges
that the district court failed to properly consider the factors
outlined in 18 U.S.C. § 3553(a), he is arguably challenging the
procedural reasonableness of his sentence; we therefore engage in
a review of procedural reasonableness as well.

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A.   Procedural Reasonableness

          Barquet first argues that the district court failed to

give "full consideration" to certain statutory factors, in

particular, his history and characteristics, including health

problems, drug and alcohol addiction, and cooperation with the

government.   We disagree.

          A district court procedurally errs when it does not

consider the factors outlined in 18 U.S.C. § 3553(a).     Cavera,

550 F.3d at 190; see also Gall v. United States, 552 U.S. 38, 49-
50 (2007).    Unless the record suggests otherwise, however, "we

presume . . . that a sentencing judge has faithfully discharged

[his] duty to consider the statutory factors."     United States v.

Fernandez, 443 F.3d 19, 30 (2d Cir. 2006).

          At sentencing, the district court imposed a below-

Guidelines sentence to "reflect[] the help that [Barquet] gave

the government."    Sentencing Tr. at 13.   Furthermore, it

specifically acknowledged Barquet's financial difficulties, and

earlier in the hearing, defense counsel and Barquet both stressed

that the debt was tied to Barquet's health problems and addiction

to alcohol and drugs.    The court's explanation of its reasoning

reflects a careful consideration of Barquet's arguments.

          As we do not require "robotic incantations" of the

§ 3553(a) factors, United States v. Crosby, 397 F.3d 103, 113 (2d

Cir. 2005) (internal quotation marks omitted), abrogated on other
grounds by United States v. Fagans, 406 F.3d 138 (2d Cir. 2005),

and because the record does not suggest otherwise, we conclude

that the district court properly considered those factors,


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Fernandez, 443 F.3d at 30, and hold that Barquet's sentence was

procedurally reasonable.
B.   Substantive Reasonableness

           Barquet also argues that his forty-six month sentence

was substantively unreasonable.    This challenge also fails.

           A sentence imposed by the district court is

substantively unreasonable only if it "cannot be located within

the range of permissible decisions."    Cavera, 550 F.3d at 189

(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.
2007)).   We will set aside sentencing decisions only in

"exceptional cases," id., as we will not substitute our judgment

for that of the district court, Fernandez, 443 F.3d at 27.

           Barquet's sentence was well within the range of

reasonable sentences.    He was convicted of conspiring to

distribute 998.5 grams of heroin, just shy of the 1000 grams that

would ordinarily carry a ten-year mandatory minimum sentence.     21

U.S.C. § 841(b)(1)(A).    Moreover, because Barquet qualified for

the safety valve under § 3553(f), the applicable Guidelines range

was fifty-seven to seventy-one months, and thus the district

court's forty-six month sentence was well below the Guidelines

range.    The district court gave appropriate weight to the

mitigating factors offered by Barquet, but balanced them against

the seriousness of his conduct.    See United States v. Capanelli,

479 F.3d 163, 165 (2d Cir. 2007) ("[T]he weight given to any

single factor 'is a matter firmly committed to the discretion of

the sentencing judge and is beyond our review.'" (quoting



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Fernandez, 443 F.3d at 32)).   We therefore conclude that

Barquet's sentence was substantively reasonable.

          We have considered Barquet's remaining arguments and

conclude they are without merit.   For the foregoing reasons, we
AFFIRM the judgment of the district court.


                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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