     09-3439-cr
     U nited States v. G arcia-Luna

 1                                    UNITED STATES COURT OF APPEALS
 2                                        FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. W HEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 21 st day of April, two thousand ten.
17
18   PRESENT:               GUIDO CALABRESI,
19                          ROBERT D. SACK,
20                          GERARD E. LYNCH,
21                                          Circuit Judges.
22
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24   UNITED STATES OF AMERICA,
25                                             Appellee,
26                            v.                                                  No. 09-3439-cr
27
28   VICTOR MANUEL GARCIA-LUNA,
29   also known as VICTOR MANUEL JOYARIN,
30   also known as VICTOR GARCIA,
31   also known as JOSE R. MALDONADO,
32   also known as VICTOR MANUEL JOYARIM,
33                                             Defendant-Appellant.
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35   APPEARING FOR APPELLANT:                          Mitchell A. Golub, Golub & Golub, LLP, New
36                                                     York, New York, on submission.
37
38   APPEARING FOR APPELLEE:                           Alexander A. Solomon, Assistant United States
39                                                     Attorney (David C. James, Assistant United
40                                                     States Attorney, of counsel), for Benton J.
41                                                     Campbell, United States Attorney for the Eastern
42                                                     District of New York, Brooklyn, New York, on
43                                                     submission.

44              Appeal from the United States District Court for the Eastern District of New York
 1   (Sandra L. Townes, Judge).

 2          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

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

 4          Victor Garcia-Luna appeals from a sentence of 70 months in prison and three years

 5   of supervised release imposed for a conviction, following a guilty plea, of illegal reentry

 6   into the United States after deportation in violation of 8 U.S.C. § 1326(a). We assume the

 7   parties’ familiarity with the relevant facts and procedural history of this case, and the

 8   issues presented on this appeal.

 9          We review sentences under a “deferential abuse-of-discretion standard.” United

10   States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc), quoting Gall v. United

11   States, 552 U.S. 38, 40 (2007). In coming to a procedurally reasonable sentence, a

12   district court must consider the factors listed in 18 U.S.C. § 3553(a), including the

13   advisory Sentencing Guidelines range, and “conduct its own independent review of the

14   sentencing factors, aided by the arguments of the prosecution and defense,” in order to

15   reach “an informed and individualized judgment . . . as to what is ‘sufficient, but not

16   greater than necessary’ to fulfill the purposes of sentencing.” Id., quoting 18 U.S.C. §

17   3553(a).

18          Garcia-Luna argues that his sentence was procedurally unreasonable, because the

19   district court failed to give adequate consideration to the 18 U.S.C. § 3553(a) factors. In

20   particular, he argues that the district court failed to take adequately into account the

21   circumstances surrounding his re-entry into the United States. Garcia-Luna claims that



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 1   following his deportation to Colombia, he contacted agents he knew at the Drug

 2   Enforcement Agency (“DEA”), and told them about a narcotics trafficking ring he had

 3   learned of while in prison. According to Garcia-Luna, DEA agents instructed him to

 4   travel to Mexico, where they secreted him in a hidden compartment in a vehicle into the

 5   United States so that he could connect the traffickers with the DEA agents. After making

 6   this connection, he claims that he left California with the tacit permission of the agents to

 7   return to New York, where he was eventually arrested for driving under the influence of

 8   alcohol, and subsequently charged with illegal reentry.

 9          The district court clearly considered Garcia-Luna’s story regarding the

10   circumstances surrounding his illegal reentry into the country. It simply did not believe

11   him. The district court found that the story was not credible, because it was not

12   corroborated by any government sources and because of Garcia-Luna’s history of deceit

13   and the use of false names to authorities. The district court’s decision not to credit

14   Garcia-Luna’s story regarding his reentry was completely reasonable given the lack of

15   corroboration and the legitimate questions about Garcia-Luna’s credibility. His sentence

16   was therefore not procedurally unreasonable on this ground.

17          Nor was it otherwise unreasonable. The district court explicitly stated that it had

18   considered the § 3553(a) factors, and noted that the sentence should afford adequate

19   deterrence before sentencing Garcia-Luna to the bottom of the unchallenged guidelines

20   range of 70 to 87 months imprisonment. Given Garcia-Luna’s history of narcotics

21   dealing and parole violations, this sentence was well within the limits of the district



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 1   court’s discretion. See id. (“We will . . . set aside a district court’s substantive

 2   determination only in exceptional cases where the trial court’s decision cannot be located

 3   within the range of permissible decisions.” (emphasis and internal quotations marks

 4   omitted)).

 5          For the foregoing reasons, the judgment of the district court is AFFIRMED.

 6
 7                                       FOR THE COURT:
 8                                       CATHERINE O’HAGAN WOLFE, Clerk of Court
 9
10
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