         09-3776-cr
         USA v. Paredes (Velasquez)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23 rd day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                         Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-3776-cr
19
20       RICARDO PAREDES, also known as RICHIE,
21       ANGEL PAULINO,
22
23                                       Defendants,
24
25       JOSE VELASQUEZ, also known as E.
26       HERNANDEZ-MANGUAL, also known as MILCO DIAZ,
27       also known as ROLANDO DIAZ, also known as
28       ALBERTO VELEZ, also known as ORLANDO DIAZ,
29
30                                       Defendant-Appellant.
31
32
33
 1   FOR APPELLANT:     SALLY WASSERMAN, Law Office of Sally
 2                      Wasserman, Esq., New York, NY.
 3
 4   FOR APPELLEE:      STEPHEN J. MEYER, Assistant United States
 5                      Attorney, of counsel, for Loretta E.
 6                      Lynch, United States Attorney for the
 7                      Eastern District of New York, New York,
 8                      NY.
 9
10        Appeal from the United States District Court for the
11   Eastern District of New York (Cogan, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the District Court be

15   AFFIRMED.

16       Jose Velasquez (“Appellant”) appeals from a judgment of

17   the United States District Court for the Eastern District of

18   New York (Cogan, J.), entered on September 3, 2009 and

19   sentencing him to 160 months imprisonment followed by five

20   years of supervised release.   We assume the parties’

21   familiarity with the underlying facts, the procedural

22   history, and the issues presented for review.

23       We review the sentence imposed by the District Court

24   for both substantive and procedural reasonableness.     United

25   States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

26   banc).   “Reasonableness review is akin to review for abuse

27   of discretion, under which we consider whether the

28   sentencing judge exceeded the bounds of allowable


                                    2
1    discretion, committed an error of law in the course of

2    exercising discretion, or made a clearly erroneous finding

3    of fact.”   United States v. Williams, 475 F.3d 468, 474 (2d

4    Cir. 2007) (internal quotation marks and alterations

5    omitted).

6        Appellant argues that his sentence was procedurally

7    unreasonable because the District Court allowed Appellant’s

8    criminal history to “overshadow” the other 18 U.S.C.

9    § 3553(a) factors.   We disagree.   There is a “strong

10   presumption that the District Court faithfully performed its

11   statutory obligation to consider the § 3553(a) factors.”

12   United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006).

13   Appellant has presented no evidence to rebut this

14   presumption.   Moreover, upon reviewing the record, we

15   conclude that the District Court did, in fact, fully

16   consider the statutory factors and did not afford undue

17   weight to Appellant’s criminal history.    Indeed, the

18   District Court explicitly stated that it considered all the

19   factors in 3353(a) and it discussed several of them at

20   length at the sentencing proceeding.    Accordingly, we

21   conclude that the District Court committed no procedural

22   error.



                                   3
1        Appellant next argues that his sentence was

2    substantively unreasonable.    Substantive review of a

3    sentence is akin to “consideration of a motion for a new

4    criminal jury trial, which should be granted only when the

5    jury's verdict was ‘manifestly unjust,’ and to the

6    determination of intentional torts by state actors, which

7    should be found only if the alleged tort ‘shocks the

8    conscience.’”   United States v. Dorvee, --- F.3d ----, 2010

9    WL 3023799, at *7 (2d Cir. Aug. 4, 2010) (citing United

10   States v. Rigas, 583 F.3d 108, 122-23 (2d Cir. 2009)).

11   Here, the District Court explained in detail its reasons for

12   imposing the sentence, considered at length the mitigating

13   factors Appellant presented, and ultimately imposed a below-

14   guideline sentence.   For these reasons, we conclude that the

15   sentence was not substantively unreasonable.

16       For the foregoing reasons, the judgment of the District

17   Court is hereby AFFIRMED.

18
19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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