         09-3366-cr
         U.S. v. Napper


                                   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 20 th day of July, two thousand and                                    ten.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                         Circuit Judges,
 9                RICHARD W. GOLDBERG,
10                         Judge. *
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-3366-CR
19
20       TROY NAPPER, a/k/a TROY MOTE,
21
22                                       Defendant-Appellant.
23
24
25
26




                 *
                 The Honorable Richard W. Goldberg, of the United States Court of
         International Trade, sitting by designation.
 1   FOR APPELLANT:       GARY D. WEINBERGER, Assistant Federal
 2                        Defender (Thomas McCudden, on the brief)
 3                        for Thomas G. Dennis, Federal Defender,
 4                        Hartford, CT.
 5
 6   FOR APPELLEE:        DAVID E. NOVICK, Assistant United States
 7                        Attorney (William J. Nardini, Assistant
 8                        United States Attorney, of counsel), for
 9                        David B. Fein, United States Attorney for
10                        the District of Connecticut, New Haven,
11                        CT.
12
13        Appeal from the United States District Court for the
14   District of Connecticut (Arterton, J.).
15
16       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of said district court be

18   AFFIRMED.

19       Appellant Troy Napper appeals from a judgment of the

20   United States District Court for the District of Connecticut

21   (Arterton, J.), which sentenced Napper principally to 188

22   months’ imprisonment.     We assume the parties’ familiarity

23   with the underlying facts, the procedural history, and the

24   issues presented for review.

25       We review a district court’s sentencing decision under

26   a “deferential abuse-of-discretion standard.”     United States

27   v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (quoting Gall v.

28   United States, 552 U.S. 38, 41 (2007)).     We examine the

29   sentence for reasonableness, both procedural and

30   substantive.     United States v. Avello-Alvarez, 430 F.3d 543,

31   545 (2d Cir. 2005).
1        To the extent that Napper’s argument may be construed

2    to challenge the procedural reasonableness of his sentence,

3    he presents no evidence that the prosecution’s decision to

4    file a 21 U.S.C. § 851 notice was based on improper factors.

5    See United States v. Sanchez, 517 F.3d 651, 671 (2d Cir.

6    2008).   Nor does he present sufficient evidence that there

7    exists a geographical variance in the volume of filings of §

8    851 notices such that there is a sentencing disparity

9    between similarly-situated defendants.     Napper analogizes

10   the alleged variance in filing of § 851 notices with

11   geographically-limited “fast track” programs authorized in

12   U.S.S.G. § 5K3.1.     We have expressly rejected that

13   differences between sentences in jurisdictions with and

14   without a “fast track” program render a sentence

15   unreasonable.     See United States v. Mejia, 461 F.3d 158, 164

16   (2d Cir. 2006).

17       Napper claims that his below-Guidelines sentence was

18   substantively unreasonable because the district court failed

19   to consider adequately the factors detailed in 18 U.S.C. §

20   3553(a) and thus his sentence was “greater than necessary.”

21   Our review of the sentencing hearing belies this position.

22   Though Napper himself would have weighed the factors

23   differently, that does not mean the district court abused
1   its discretion when it conducted its balancing.

2       The judgment of the district court is hereby AFFIRMED.

3
4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7
8




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