     11-4240 (L)
     United States v. LaRose

                          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 18th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                        11-4240 (Lead)
17                                                                12-729 (Con)
18
19       JERMAINE BRANFORD, AKA SEALED
20       DEFENDANT 1, AKA HOVIE, TRAVIS
21       BATTISTE, MIZAIR LICONA, AKA SEALED
22       DEFENDANT 6, HEATHER LAFAVE, EVERDA
23       BARON, PATRICK MCINTYRE, AKA SEALED
24       DEFENDANT 9, AKA SHINE, ARRON GUNN,
25       AKA SEALED DEFENDANT 10, AKA TEXAS,
26       AKA STEVEN DUNN, SEMEATHEA LEAKE, AKA
27       SEALED DEFENDANT 11, AKA SEMEATHEA
28       LEAKE-ROBERTS, AKA MEME,
29
30                    Defendants,

                                                  1
 1   ENAL C. LAROSE, AKA SEALED DEFENDANT
 2   2, AKA EZ, TYRONE FELDER, AKA SEALED
 3   DEFENDANT 3, AKA T-BONE,
 4            Defendants-Appellants.
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT LAROSE:      ENAL C. LAROSE, pro se.
 8
 9   FOR APPELLANT FELDER:      J. SCOTT PORTER, Seneca Falls,
10                              New York.
11
12   FOR APPELLEES:             BRENDA K. SANNES (Carla B.
13                              Freedman, on the brief), for
14                              Richard S. Hartunian, United
15                              States Attorney’s Office for the
16                              Northern District of New York,
17                              Syracuse, New York.
18
19        Appeal from a judgment of the United States District
20   Court for the Northern District of New York (Mordue, J.) .
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23   AND DECREED that the judgment of the district court be
24   AFFIRMED.
25
26        Defendants Tyrone Felder and Enal C. LaRose challenge
27   the substantive reasonableness of a sentence imposed by the
28   United States District Court for the Northern District of
29   New York (Mordue, J.) after they pled guilty to conspiracy
30   to possess with intent to distribute cocaine and crack
31   cocaine. On September 29, 2011, the court sentenced LaRose
32   to 151 months of imprisonment and five years of supervised
33   release. On February 16, 2012, the court sentenced Felder
34   to 262 months of imprisonment, to be followed by eight years
35   of supervised release. We assume the parties’ familiarity
36   with the underlying facts, the procedural history, and the
37   issues presented for review.
38
39        The substantive reasonableness of a sentence is
40   reviewed for abuse of discretion. United States v. Hasan,
41   586 F.3d 161, 167-68 (2d Cir. 2009). A substantive
42   reasonableness inquiry must “take into account the totality
43   of the circumstances, giving due deference to the sentencing
44   judge’s exercise of discretion, and bearing in mind the

                                  2
 1   institutional advantages of district courts.” United States
 2   v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (in banc).
 3
 4        The Guidelines range for Felder, a career offender with
 5   two prior felony convictions, was 262 to 327 months. The
 6   sentence was therefore at the low end of this Guidelines
 7   range, at 262 months. On appeal, Felder argues that the
 8   district court should have imposed a sentence within the
 9   Guidelines range (151 to 188 months) that would have applied
10   absent his career offender status.
11
12        However, Felder does not challenge his career offender
13   status, nor does he point to any procedural flaws committed
14   by the district court. Instead, he argues that the court
15   should have exercised discretion under 18 U.S.C. § 3553 to
16   recognize Felder’s troubled upbringing, his inferior role in
17   the criminal operation, and his good faith efforts to keep
18   legitimate employment. He also asserts that the district
19   court gave excessive weight to the fact that he cooked crack
20   cocaine. Finally, he points to the disparities between his
21   sentence in this case and his prior drug offense sentences,
22   and between his sentence and those of his co-defendants.
23
24        While such factors may influence a trial judge’s
25   sentencing determination, they do not mandate vacatur here.
26   The Court will “set aside a district court’s substantive
27   determination only in exceptional cases where the trial
28   court’s decision cannot be located within the range of
29   permissible decisions.” Cavera, 550 F.3d at 189 (internal
30   quotation marks and citation omitted). The district court’s
31   sentence was well within the range of permissible decisions.
32
33        Counsel for LaRose has submitted a brief pursuant to
34   Anders v. California, 386 U.S. 738 (1967), asserting the
35   absence of any non-frivolous appellate issue. Counsel
36   suggested that LaRose had received a sentence of 120 months
37   and that, as a result, LaRose was bound by the waiver of his
38   right to appeal any sentence at or below 120 months
39   imprisonment, as set forth in his plea agreement. Anders
40   Br., Counsel for LaRose, 9. But LaRose’s sentence was 151
41   months. Consequently, there was no waiver. The brief does
42   not thereafter adequately discuss the presence or absence of
43   any non-frivolous issue.
44

                                  3
 1        Nevertheless, after examining the record independently
 2   and with care, we have not been able to find any non-
 3   frivolous issue. LaRose argues pro se that his attorney and
 4   the government misrepresented to him that he would receive a
 5   sentence of 120 months or less. Yet, LaRose twice affirmed
 6   that he had not been made any promises, other than those in
 7   the plea agreement, that induced him to plead guilty. His
 8   appeal is therefore without merit.
 9
10        For the foregoing reasons, and finding no merit in
11   appellants’ other arguments, we hereby GRANT the motion to
12   withdraw filed by LaRose’s counsel (and the government’s
13   motion for summary affirmance). The judgment of the
14   district court is hereby AFFIRMED. Any application for fees
15   under the Criminal Justice Act, 18 U.S.C. § 3006A, by
16   LaRose’s counsel is DENIED.
17
18
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
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