     14-518
     United States v. Zuber

                          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 2nd day of December, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES,
13                Appellee,
14
15                    -v.-                                               14-518
16
17       ERIC P. ZUBER,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        E. M. Allen, III, Stetler, Allen
22                                             & Kampmann, Burlington, Vermont.
23
24       FOR APPELLEE:                         William B. Darrow, Wendy L.
25                                             Fuller and Gregory L. Waples,
26                                             Assistant United States
27                                             Attorneys, for Tristram J.
28                                             Coffin, United States Attorney
29                                             for the District of Vermont,
30                                             Burlington, Vermont.
31
 1        Appeal from a judgment of the United States District
 2   Court for the District of Vermont (Murtha, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Eric Zuber appeals from the judgment of the United
 9   States District Court for the District of Vermont (Murtha,
10   J.) sentencing him principally to 78 months’ imprisonment
11   following his guilty plea to conspiring to distribute heroin
12   and cocaine. Zuber contends the district court erred by
13   declining to credit him with acceptance of responsibility,
14   U.S.S.G. § 3E1.1(a), and by declining to consider a non-
15   Guidelines sentence. We assume the parties’ familiarity
16   with the underlying facts, the procedural history, and the
17   issues presented for review.
18
19        The Presentence Report recommended a two-level
20   enhancement for obstruction of justice based upon Zuber’s
21   “attempts to avoid detection and arrest,” including
22   “absconding” from Vermont, and a two-level credit for
23   acceptance of responsibility. The court concluded that the
24   obstruction enhancement was not warranted and declined to
25   credit Zuber with acceptance of responsibility.
26
27        “We review a sentence for reasonableness, which is akin
28   to review for abuse of discretion, under which we consider
29   whether the sentencing judge exceeded the bounds of
30   allowable discretion, committed an error of law in the
31   course of exercising discretion, or made a clearly erroneous
32   finding of fact.” United States v. Leslie, 658 F.3d 140,
33   142 (2d Cir. 2011) (internal quotation marks omitted).
34   Zuber’s objection to the district court’s finding that he
35   was not entitled to acceptance of responsibility credit is
36   limited to plain error review because Zuber failed to object
37   in the district court. See United States v. Wagner-Dano,
38   679 F.3d 83, 90 (2d Cir. 2012).
39
40        The district court’s conclusion that, in light of his
41   flight, Zuber had not “clearly demonstrate[d] acceptance of
42   responsibility” U.S.S.G. § 3E1.1(a), was “well founded,” not
43   “without foundation,” and certainly not plainly erroneous,
44   United States v. Brennan, 395 F.3d 59, 75 (2d Cir. 2005)
45   (internal quotation mark omitted); see also United States v.
46   Zuber, 118 F.3d 101, 105 (2d Cir. 1997) (“[W]e find no basis
47   for disturbing the defendant’s sentence in the fact that the

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 1   court, in explaining its decisions both to increase the
 2   defendant’s offense level for obstruction of justice and to
 3   deny the defendant’s motion for an acceptance of
 4   responsibility departure, noted that the defendant had
 5   ‘fle[d] the jurisdiction twice.’”); U.S.S.G. § 3C1.1, cmt.
 6   n.5 (“Some types of conduct ordinarily do not warrant
 7   application of [the obstruction] adjustment but may warrant
 8   a greater sentence within the otherwise applicable guideline
 9   range or affect the determination of whether other guideline
10   adjustments apply (e.g., § 3E1.1 (Acceptance of
11   Responsibility)).”).
12
13        The district court was further justified in denying
14   acceptance of responsibility credit because Zuber attempted
15   to minimize his conduct and culpability. For example, while
16   Zuber told the court that “[a]t no time” did he “know that
17   there was a warrant for [his] arrest,” the court concluded
18   that he “certainly knew there was somebody looking” for him.
19   That conclusion was well-founded: Zuber’s attorney
20   contacted the U.S. Attorney’s Office to negotiate his
21   surrender months before his out-of-state arrest. And, in
22   his sentencing memorandum to the court, Zuber claimed that
23   he “exaggerate[d] his importance in the local drug scene” to
24   “convince the officers of his value as an
25   informant/operative” and was therefore faced with an unduly
26   harsh Guidelines range that did not reflect his true
27   culpability. In sum, a “defendant who enters a guilty plea
28   is not automatically entitled to an adjustment for
29   acceptance of responsibility.” United States v. Ortiz, 218
30   F.3d 107, 108 (2d Cir. 2000) (per curiam).
31
32        Zuber argues the district court failed to entertain a
33   non-Guidelines sentence and imposed a substantively
34   unreasonable sentence. Not so. The district court
35   considered a non-Guidelines sentence, but found a Guidelines
36   sentence warranted in light of the seriousness of the
37   offense and the need for deterrence. Indeed, the court
38   specifically considered Zuber’s personal characteristics,
39   and weighed them against the facts that he had already been
40   through a drug treatment program and that this was his
41   “second appearance before the federal court.” And, the 78-
42   month Guidelines sentence was not substantively
43   unreasonable. See generally United States v. Ingram, 721
44   F.3d 35, 37 (2d Cir. 2013) (per curiam).

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 1
 2        For the foregoing reasons, and finding no merit in
 3   Zuber’s other arguments, we hereby AFFIRM the judgment of
 4   the district court.
 5
 6                              FOR THE COURT:
 7                              CATHERINE O’HAGAN WOLFE, CLERK
 8
 9
10
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