    08-5292-cr
    USA v. Arias-Madrid
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

    RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
    CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
    “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
    PARTY NOT REPRESENTED BY COUNSEL.


          At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 14 th day of May, two thousand ten.

    PRESENT:              JON O. NEWMAN,
                          JOHN M. WALKER, JR.,
                          GERARD E. LYNCH,
                                         Circuit Judges,

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    UNITED STATES OF AMERICA,
                                              Appellee,
                             v.                                          No. 08-5292-cr
    RAMON ARIAS-MADRID, also known as OSCAR
    MARRA, also known as RAMON ANTONIO
    MADRID, also known as ORLANDO FLORES,
    also known as JOSE FRANCISCO MORAZON,
                                              Defendant-Appellant.*
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    FOR APPELLANT:                            JAMES M. BRANDEN, New York, NY, on submission

    FOR APPELLEE:                          JACQUELINE L. SPRATT and EMILY BERGER, for
                                           BENTON J. CAMPBELL, United States Attorney for the
                                           Eastern District of New York, Brooklyn, NY, on
                                           submission.

1            Appeal from the United States District Court for the Eastern District of New York

2   (Eric N. Vitaliano, Judge).

             *
               The Clerk of the Court is instructed to amend the official caption in this case to conform
    to the listing of the parties above.
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of conviction, entered on October 28, 2008, is AFFIRMED.

 3          Ramon Arias-Madrid appeals from a sentence of 84 months imprisonment imposed

 4   for a conviction, following a guilty plea, of illegal reentry into the United States after

 5   deportation subsequent to conviction for an aggravated felony in violation of 8 U.S.C.

 6   § 1326(a) & (b)(2). Arias-Madrid challenges only the substantive reasonableness of his

 7   sentence, contending that it is “greater than necessary to meet the sentencing objectives set

 8   forth in 18 U.S.C. § 3553(a)(2).”

 9          We review the reasonableness of a sentence under an abuse-of-discretion standard,

10   and will “set aside a district court’s substantive determination only in exceptional cases

11   where the trial court’s decision cannot be located within the range of permissible decisions.”

12   United States v. Rigas, 583 F.3d 108, 121-22 (2d Cir. 2009) (emphasis omitted). In

13   examining the substantive reasonableness of a sentence, “we take into account the totality

14   of the circumstances, giving due deference to the sentencing judge’s exercise of discretion.”

15   United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal quotation

16   marks omitted).

17          Arias-Madrid contends that the district court erred by failing to give adequate weight

18   to his particular “history and characteristics” under § 3553(a)(1), specifically his deprived

19   childhood, his addiction to various drugs, his daughter’s need for interaction with her father

20   and the illness of his mother. Arias-Madrid argues additionally that the unreasonableness of

21   his sentence is demonstrated by the fact that he received a significantly longer sentence for

22   this crime than when convicted for his previous, arguably more serious, crimes.

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 1            Here, the district court explicitly stated that it had considered the Guidelines and the

 2   factors under § 3553(a) in determining the sentence. The district court specifically made

 3   clear that it took account of the difficult circumstances of Arias-Madrid’s upbringing and of

 4   the illness of his mother as mitigating circumstances. However, it determined that these

 5   mitigating factors were more than counterbalanced by Arias-Madrid’s extensive criminal

 6   history and the need for general deterrence. As a general rule, we do not substitute our own

 7   consideration of the § 3553(a) sentencing factors for the district court’s. See United States

 8   v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006) (“[W]e will not second guess the weight (or

 9   lack thereof) that the judge accorded to a given factor or to a specific argument made

10   pursuant to that factor.”)    On the basis of the district court’s evaluation of the facts and

11   circumstances of the case, we cannot say that the sentence of 84 months imprisonment was

12   not “within the range of permissible decisions.” Our conclusion is not undermined by the

13   fact that Arias-Madrid received lesser sentences in the past for his previous crimes.

14            Further supporting our conclusion that the district court’s sentence is reasonable is the

15   fact that it is within the Guidelines range for his crime. Although this Circuit has not adopted

16   a presumption that a within-Guidelines sentence is reasonable, “in the overwhelming

17   majority of cases, a Guidelines sentence will fall comfortably within the broad range of

18   sentences that would be reasonable in the particular circumstances.” Fernandez, 443 F.3d

19   at 27.

20            For the foregoing reasons, the judgment of conviction is AFFIRMED.

21                                         FOR THE COURT:
22                                         CATHERINE O’HAGAN WOLFE, Clerk of Court
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