     13-2568-cr
     USA v. Isa

                          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 14th day of April, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-2568-cr
16
17       NIDAL ISA,
18                Defendant-Appellant.*
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        LAURIE S. HERSHEY, Manhasset,
22                                             New York.
23



                  *
                  The Clerk of Court is directed to amend the
         caption as above.
                                                  1
 1   FOR APPELLEE:              LEE RENZIN, Assistant United
 2                              States Attorney, Of Counsel
 3                              (Michael A. Levy, Assistant
 4                              United States Attorney, Of
 5                              Counsel, on the brief), for
 6                              Preet Bharara, United States
 7                              Attorney for the Southern
 8                              District of New York, New York,
 9                              New York.
10
11        Appeal from a sentence of the United States District
12   Court for the Southern District of New York (Bricetti, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Nidal Isa appeals from a judgment of conviction entered
19   on June 18, 2013, sentencing him chiefly to 36 months’
20   imprisonment. He challenges the procedural and substantive
21   reasonableness of the sentence. We assume the parties’
22   familiarity with the underlying facts, the procedural
23   history, and the issues presented for review.
24
25        Isa pleaded guilty on September 10, 2012 to a four-
26   count indictment: conspiracy to distribute and possess with
27   intent to distribute more than 50 grams of methamphetamine,
28   as well as other controlled substances, in violation of 21
29   U.S.C. §§ 841, 846 (Count One); conspiracy to possess a
30   chemical precursor to one drug with intent to manufacture a
31   controlled substance, in violation of 21 U.S.C. §§ 841, 846
32   (Count Two); conspiracy to transport individuals in
33   interstate commerce for the purpose of engaging in
34   prostitution, in violation of 18 U.S.C. §§ 371, 2421 (Count
35   Three); and bank fraud, in violation of 18 U.S.C. § 1344
36   (Count Four).
37
38        At sentencing, the parties ultimately agreed that Isa’s
39   Sentencing Guidelines range was 70 to 87 months. The
40   mandatory minimum of 60 months on Count One was obviated by
41   sufficient findings of the district court, which ultimately
42   imposed a 36-month sentence, roughly half of his Guidelines
43   range, to adequately account for Isa’s relative culpability
44   and adjustments made to the Guidelines calculation at the
45   sentencing hearing.
46


                                  2
 1        We review criminal sentences deferentially, for
 2   reasonableness only. See Gall v. United States, 552 U.S.
 3   38, 51 (2007) (“The fact that the appellate court might
 4   reasonably have concluded that a different sentence was
 5   appropriate is insufficient to justify reversal of the
 6   district court.”). “Reasonableness review requires an
 7   examination of the length of the sentence (substantive
 8   reasonableness) as well as the procedure employed in
 9   arriving at the sentence (procedural reasonableness).”
10   United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
11   The standard of review for both inquiries is abuse of
12   discretion. United States v. Verkhoglyad, 516 F.3d 122, 127
13   (2d Cir. 2008).
14
15        Procedural Reasonableness. “A district court commits
16   procedural error where it fails to calculate (or improperly
17   calculates) the Sentencing Guidelines range, treats the
18   Sentencing Guidelines as mandatory, fails to consider the
19   [18 U.S.C.] § 3553(a) factors, selects a sentence based on
20   clearly erroneous facts, or fails adequately to explain the
21   chosen sentence.” United States v. Robinson, 702 F.3d 22,
22   38 (2d Cir. 2012) (citing Gall, 552 U.S. at 51).
23
24        Isa argues the district court erred in not departing
25   from a Category III criminal history to a Category II under
26   U.S.S.G. § 4A1.3(b)(1).1 “‘[A] refusal to downwardly depart
27   is generally not appealable,’ and . . . review of such a
28   denial will be available only ‘when a sentencing court
29   misapprehended the scope of its authority to depart or the
30   sentence was otherwise illegal.’” United States v. Stinson,
31   465 F.3d 113, 114 (2d Cir. 2006) (per curiam) (quoting
32   United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005)).
33   “In the absence of ‘clear evidence of a substantial risk
34   that the judge misapprehended the scope of his departure
35   authority,’ we presume that a sentence judge understood the
36   scope of his authority.” Id. (quoting United States v.
37   Gonzalez, 281 F.3d 38, 42 (2d Cir. 2002)).

         1
              Under U.S.S.G. § 4A1.3(b)(1) a “downward
     departure” may be warranted if “the defendant’s criminal
     history category substantially over-represents the
     seriousness of the defendant’s criminal history or the
     likelihood that the defendant will commit further crimes.”
     “We have called this a ‘horizontal departure,’ as it results
     in a move from right to left on the sentencing grid.”
      United States v. Ingram, 721 F.3d 35, 38-39 (2d Cir. 2013)
     (internal citation omitted).
                                  3
 1        Nothing in the record suggests that the district court
 2   failed to understand its authority to grant the requested
 3   departure. Rather, the record indicates that the district
 4   court considered Isa’s request for a downward departure and
 5   cited “specific reasons” for rejecting it on the merits.
 6   Ingram, 721 F.3d at 39; see Tr. of Sentencing at 19-21, June
 7   11, 2013 (concluding, after a thorough review of Isa’s
 8   lengthy criminal history, that “I’m not going to downwardly
 9   depart from Category III, because I really don’t think,
10   under these facts, that it’s fair to conclude that Category
11   III overstates his criminal history”). We therefore reject
12   Isa’s claim of procedural error.
13
14        Substantive Reasonableness. Finally, Isa challenges
15   his sentence as substantively unreasonable. “In reviewing
16   [a sentence] for substantive reasonableness, we consider the
17   totality of the circumstances, and reverse only in
18   exceptional cases where the trial court’s decision cannot be
19   located within the range of permissible decisions[.]”
20   United States v. Mason, 692 F.3d 178, 181 (2d Cir. 2012)
21   (internal quotation marks and citation omitted). The
22   standard “provide[s] a backstop for those few cases that,
23   although procedurally correct, would nonetheless damage the
24   administration of justice because the sentence imposed was
25   shockingly high, shockingly low, or otherwise unsupportable
26   as a matter of law.” United States v. Rigas, 583 F.3d 108,
27   123 (2d Cir. 2009).
28
29        Isa’s principal argument is that he should not have
30   received the same 36-month sentence as Firas Yousef.
31   However, the parity in sentences does not “shock the
32   conscience.” Isa and Yousef were not found guilty of
33   similar conduct; the scope of Isa’s criminal conduct was far
34   broader than Yousef’s; and Yousef was convicted only of a
35   single count of conspiracy to distribute narcotics and a
36   single count of attempted use of a fraudulent medical
37   prescription.
38
39        In any event, Isa’s claim is wholly meritless.
40   Yousef’s Guidelines range (51 to 63 months) was far lower
41   than Isa’s (70 to 87 months). Although they both received a
42   36-month sentence, Isa enjoyed a greater variance (in
43   relative and absolute terms) from the applicable Guidelines
44   range. In short, Isa was treated with the greater leniency
45   that he claims to merit.
46


                                  4
 1        Ultimately, the record shows that the district court
 2   thoughtfully considered all of the relevant sentencing
 3   factors Isa presented, such as his battles with substance
 4   abuse, in light of the seriousness of his offenses of
 5   conviction and his (lengthy) criminal history. After doing
 6   so, the district court imposed a sentence well below the
 7   advisory Guidelines range and the otherwise applicable
 8   mandatory minimum. Based on our review of the record, we
 9   cannot conclude that that sentence is substantively
10   unreasonable.
11
12        For the foregoing reasons, and finding no merit in
13   Isa’s other arguments, we hereby AFFIRM the judgment of the
14   district court.
15
16                              FOR THE COURT:
17                              CATHERINE O’HAGAN WOLFE, CLERK
18




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