     13-2158
     United States v. Pabey

                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of June, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                CHESTER J. STRAUB,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                Appellee,
14
15                    -v.-                                               13-2158
16
17       Dario Pabey,
18                Defendant-Appellant,
19
20       Marcus Dwyer,
21                Defendant.*
22
23       - - - - - - - - - - - - - - - - - - - -X
24


                *
               Clerk of Court is direction to amend the caption as
         set forth above.

                                                  1
 1   FOR APPELLANT:             Nicholas J. Pinto, New York, New
 2                              York.
 3
 4   FOR APPELLEES:             Sarala V. Nagala, Assistant
 5                              United States Attorney, Sandra
 6                              S. Glover, Assistant United
 7                              States Attorney, for Deirdre M.
 8                              Daly, United States Attorney for
 9                              the District of Connecticut, New
10                              Haven, Connecticut.
11
12        Appeal from a judgment of the United States District
13   Court for the District of Connecticut (Hall, C.J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        Dario Pabey appeals from a judgment of conviction in
20   the United States District Court for the District of
21   Connecticut (Hall, C.J.), entered on his plea of guilty to
22   bank robbery. On appeal, Pabey argues that the district
23   court abused its discretion by (1) double-counting
24   enhancements for carjacking and kidnapping; (2) failing to
25   consider mitigating circumstances; and (3) insufficiently
26   explaining the reasons for Pabey’s 180-month sentence. We
27   assume the parties’ familiarity with the underlying facts,
28   the procedural history, and the issues presented for review.
29
30        A district court’s sentence is reviewed for
31   reasonableness under an abuse of discretion standard. Gall
32   v. United States, 552 U.S. 38, 46 (2007). This
33   reasonableness review “encompasses two components:
34   procedural review and substantive review.” United States v.
35   Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). “A
36   district court commits procedural error where it fails to
37   calculate the Guidelines range (unless omission of the
38   calculation is justified), makes a mistake in its Guidelines
39   calculation, . . . treats the Guidelines as mandatory[,]
40   . . . does not consider the § 3553(a) factors, or rests its
41   sentence on a clearly erroneous finding of fact.” Id. at
42   190 (citations omitted). In reviewing for substantive
43   reasonableness, we “take into account the totality of the
44   circumstances, giving due deference to the sentencing
45   judge’s exercise of discretion,” Id., and “we will not
46   substitute our own judgment for the district court’s on the


                                  2
 1   question of what is sufficient to meet the § 3553(a)
 2   considerations in any particular case,” Id. at 189. “We
 3   will instead set aside a district court’s substantive
 4   determination only in exceptional cases where the trial
 5   court’s decision ‘cannot be located within the range of
 6   permissible decisions.’” Id. (emphasis omitted) (quoting
 7   United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
 8
 9   1.   Pabey argues that the court engaged in double-counting
10   by imposing enhancements for both carjacking and kidnapping.
11   See U.S.S.G. § 2B3.1(b)(4)-(5). “Impermissible double
12   counting occurs when one part of the guidelines is applied
13   to increase a defendant’s sentence to reflect the kind of
14   harm that has already been fully accounted for by another
15   part of the guidelines.” United States v. Volpe, 224 F.3d
16   72, 76 (2d Cir. 2000) (internal quotation marks omitted).
17   Here, the victim suffered two distinct successive harms: (i)
18   he was grabbed and dragged out of the bank, and subsequently
19   (ii) he had his car stolen, in his presence and with the
20   keys from his pocket, by Pabey and his accomplice. The
21   close timing of the two events does not make the
22   enhancements duplicative. See United States v. Sabhnani,
23   599 F.3d 215, 251 (2d Cir. 2010).
24
25   2.   Pabey argues that the district court failed to consider
26   any mitigating circumstances at sentencing. However, the
27   district court took into account Pabey’s history and
28   characteristics, including his long pattern of drug abuse,
29   his struggles in school, and his abusive father, when
30   fashioning an appropriate sentence. In addition, the
31   district court took note of Pabey’s prior convictions and
32   that, during his time in jail, Pabey “racked up more
33   tickets” than the judge had “ever seen in one or two PSR
34   reports.” Pabey argues that many of his prior convictions
35   were for minor offenses, but nothing in the record supports
36   the assertion that the court failed to consider the totality
37   and weight of the convictions. See United States v.
38   Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (“[I]n the
39   absence of record evidence suggesting otherwise, we presume
40   that a sentencing judge has faithfully discharged her duty
41   to consider the statutory factors.” (internal quotation
42   marks omitted)).
43
44   3.   Pabey contends that the district court failed to
45   explain sufficiently the reasons for his 180-month sentence.
46   However, the district court discussed its reasons at length:
47   this was an “extraordinary bank robbery,” during which Pabey

                                  3
 1   “bound at least one of the people in the bank,” “[f]orced
 2   people to get on the floor,” and threats were made “to blow
 3   this place up.” The “only way to describe these people’s
 4   experience,” in the court’s view, was that “[t]hey were
 5   terrorized.” The district court discussed the severity of
 6   the crime at length and its impact on the victims, and
 7   acknowledged a need to protect the public from Pabey and to
 8   rehabilitate him.
 9
10
11        In light of the seriousness of the offense conduct in
12   this case, Pabey’s final argument that the 180-month
13   sentence was substantively unreasonable is without merit.
14   The district court’s sentence, which falls well within the
15   Guidelines range, was within the range of permissible
16   decisions. See Cavera, 550 F.3d at 189.
17
18        For the foregoing reasons, and finding no merit in
19   Pabey’s other arguments, we hereby AFFIRM the judgment of
20   the district court.
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24




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