     08-4995-cr
     USA v. McDowall



                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
     ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S
     LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.      IN A BRIEF OR
     OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH
     A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX
     OR BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH
     THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
     SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
     WITHOUT    PAYMENT   OF    FEE    (SUCH   AS    THE    DATABASE   AVAILABLE    AT
     HTTP://WWW.CA2.USCOURTS.GOV/).      IF NO COPY IS SERVED BY REASON OF THE
     AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE
     TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS
     ENTERED.

 1         At a stated term of the United States Court of Appeals for the Second
 2   Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl
 3   Street, in the City of New York, on the 5 th day of January, two thousand ten,
 4
 5   PRESENT:
 6               Robert A. Katzmann,
 7               Barrington D. Parker,
 8               Gerard E. Lynch,
 9                           Circuit Judges.
10   ______________________________________
11
12   United States of America,
13
14                       Appellee,
15
16               -v.-                                            No. 08-4995-cr
17                                                               S UMMARY O RDER
18
19   Andre Moore, Aleksander Lipkin, Marina Dubin, Kerri Clarke, Michael Irving,
20
21                       Defendants,
22
23   Maurice McDowall,
24                     Defendant-Appellant.
25   _______________________________________
26
27   FOR DEFENDANT-APPELLANT:          Jeremy Gutman, New York, NY
28




                                               1
 1   FOR APPELLEE:             Richard C. Daddario, Katherine Polk Failla,
 2                             Assistant United States Attorneys, for Lev. L.
 3                             Dassin, Acting United States Attorney for the
 4                             Southern District of New York, Attorney for the
 5                             United States of America, New York, NY
 6
 7        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
 8   DECREED that the judgment of the district court is AFFIRMED.

 9         Defendant-Appellant Maurice McDowall appeals from a judgment

10   of conviction in the United States District Court for the

11   Southern District of New York (Patterson, J.).       McDowall was

12   convicted of conspiracy to commit bank and wire fraud in

13   violation of 18 U.S.C. § 1349 and sentenced principally to 120

14   months incarceration.   McDowall argues, on appeal, that his

15   sentence is procedurally and substantively unreasonable.         We

16   assume the parties’ familiarity with the underlying facts and

17   procedural history of this case.

18         First, McDowall argues that his sentence is procedurally

19   unreasonable because Judge Patterson did not give him notice of

20   his intention to impose a sentence above the applicable

21   Guidelines range.   The record below shows that Judge Patterson

22   imposed McDowall’s sentence in variance from the Guidelines range

23   upon consideration of the Guidelines and § 3553(a)’s sentencing

24   factors. “Departure” for notice purposes is a “term of art” that

25   “refers only to non-Guidelines sentences imposed under the

26   framework set out in the Guidelines.”     Irizarry v. United States,

27   128 S. Ct. 2198, 2202 (2008).    Under Irizarry, a sentencing court

28   is not required to notify a defendant of its intent to impose a

                                        2
 1   sentence that varies from the Guidelines.     Id.   Consequently, the

 2   district court was not required to give McDowall notice that his

 3   sentence would vary from the Guidelines range.      Id.   That Judge

 4   Patterson stated he was “departing[ing] upward from the guideline

 5   sentence” is not conclusive because, colloquially, “departure”

 6   and “variance” are often used “interchangeably.”      United States

 7   v. Keller, 539 F.3d 97, 99 n.2 (2d Cir. 2008).

 8        Next, McDowall argues that his sentence was procedurally

 9   defective because the court addressed only one statutory factor–

10   deterrence.   However, a sentencing judge is not required to

11   articulate that he has considered all of the § 3553(a) factors as

12   long as “the judge is aware of both the statutory requirements

13   and the sentencing range or ranges that are arguably applicable,

14   and nothing in the record indicates misunderstanding about such

15   materials or misperception about their relevance.”        United States

16   v. Fleming, 397 F.3d 95, 100(2d Cir. 2005).    The record,

17   including Judge Patterson's reference to deterrence, shows Judge

18   Patterson understood his obligation to consider the Guidelines

19   and § 3553(a)'s sentencing factors.   Indeed, while the judge

20   relied on the importance of deterrence as the reason for imposing

21   a stringent sentence, he specifically cited all of the factors as

22   having been considered.   Nothing in the record indicates Judge

23   Patterson misunderstood the factors or misperceived any of the

24   evidence or factors that led to his sentencing decision.

                                      3
 1        Finally, McDowall alleges that his sentence is substantively

 2   unreasonable because(1) Judge Patterson provided no reason for

 3   imposing an above-Guideline sentence and (2) Judge Patterson did

 4   not base McDowall’s sentence on proper consideration of the

 5   statutory sentencing factors.    As discussed above, these

 6   contentions are without merit.

 7        We have reviewed McDowall's other contentions and conclude

 8   that they are without merit.

 9        The judgment of the district court is AFFIRMED.

10

11

12                                    For the Court:
13                                    Catherine O’Hagan Wolfe, Clerk
14
15                                    By: __________________________
16
17




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