10-3423-cr (L)
United States of America v. Yutronic




                                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 Asummary order@). A party citing a summary order must
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 20th day of June, two thousand twelve.

PRESENT:
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges,
            RICHARD M. BERMAN,*
                        District Judge.
_____________________________________________

UNITED STATES OF AMERICA,
                                   Appellee,

                           v.                                                           No. 10-3423-cr (L)
                                                                                             11-164-cr (Con)
TOMISLAV YUTRONIC, WILSON ABAD a/k/a the Lawyer, ET AL.,
                        Defendants-Appellants.
______________________________________________

FOR DEFENDANTS- APPELLANTS:                          JAMES M. BRANDEN, Law Office of James M. Branden,
                                                     New York, New York; BERNARD ALAN SEIDLER, Law
                                                     Office of B. Alan Seidler, New York, New York.



* The Honorable Richard M. Berman of the United States District Court for the Southern District of New York sitting by
designation.

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FOR APPELLEE:                                TELEMACHUS P. KASULIS (Karl Metzner, of counsel)
                                             for Preet Bharara, United States Attorney for the
                                             Southern District of New York, New York, N.Y.

       Appeal from a judgment of the United States District Court for the Southern District of New

York (Keenan, J). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that defendant-appellant Wilson Abad’s ineffective assistance of

counsel claim is DISMISSED without prejudice and the judgment of the district court is

AFFIRMED in all other respects.

       Defendants-Appellants, Tomislav Yutronic and Wilson Abad, appeal from judgments of

conviction entered on August 18, 2010, and December 16, 2010, respectively. On February 8,

2010, Yutronic pled guilty, without the benefit of a plea agreement, to Count One of the indictment,

which charged Yutronic with conspiracy to distribute and possess with intent to distribute one

kilogram and more of heroin in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(A), and 846. On

August 17, 2010, the district court sentenced Yutronic to a term of 70 months’ imprisonment, to be

followed by a term of three years’ supervised release. Abad waived indictment, and on February

16, 2010, pled guilty, pursuant to a plea agreement, to Counts One, Two, and Three of the

Superseding Information which charged Abad respectively with conspiracy to distribute and possess

with intent to distribute 100 grams and more of heroin in violation of 21 U.S.C. §§ 812, 841(a),

841(b)(1)(B), and 846; conspiracy to distribute and possess with intent to distribute 500 grams and

more of cocaine in violation of 21 U.S.C. §§ 812, 841(a), 841(b)(1)(B), and 846; and conspiracy to

launder narcotics proceeds (money laundering) in violation of 18 U.S.C. § 1956(h). On December

16, 2010, the district court sentenced Abad to a term of 108 months’ imprisonment, to be followed by

a term of four years’ supervised release. Yutronic appeals his sentence on the grounds that it is

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substantively unreasonable because it failed to account for the minor role he played in the charged

narcotics conspiracy. Abad argues on appeal that he received ineffective assistance of counsel in

connection with his change of plea and the sentencing proceeding, and that the sentence of 108

months is substantively unreasonable. For the following reasons, we affirm the sentences imposed

by the district court and decline to consider Abad’s ineffective assistance of counsel claim.

I.     Substantive Reasonableness of Yutronic’s and Abad’s Sentences

       We review all sentences for reasonableness. United States v. Fernandez, 443 F.3d 19, 26-7

(2d Cir. 2006). On reasonableness review of a challenged sentence, we apply a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see also United States

v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). That standard recognizes that

reasonableness “is inherently a concept of flexible meaning, generally lacking precise boundaries.”

United States v. Verkhoglyad, 516 F.3d 122, 134 (2d Cir. 2008) (quoting United States v. Crosby,

397 F.3d 103, 115 (2d Cir. 2005)). “[I]n the great majority of cases, a range of sentences ... must be

considered reasonable,” United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008), and we will “set

aside a district court's substantive determination” as to an appropriate sentence “only in exceptional

cases where the trial court's decision cannot be located within the range of permissible decisions,”

Cavera, 550 F.3d at 189 (internal quotation marks omitted).

       On appeal, Yutronic argues that his sentence was substantively unreasonable because his

personal characteristics and minimal role in the offense warranted a below guidelines sentence

instead of the bottom-of-the-guidelines sentence of 70 months that the district court imposed. We

disagree. Yutronic, who joined the conspiracy to earn additional income, traveled to the United

States on a single occasion to deliver between one and three kilograms of heroin to his

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co-conspirators. The district court recognized that there was no evidence to suggest that Yutronic

had transported drugs on a prior occasion but noted that the charged conduct occurred over multiple

days and involved phone calls and multiple meetings with his co-conspirators. Moreover, the

district court acknowledged that Yutronic was not a leader or manager of the organization and was

therefore eligible for safety valve relief under 18 U.S.C. § 3553(f). Safety valve eligibility freed

Yutronic from the statutory 120-month mandatory minimum sentence and afforded him an

additional two-level reduction in his Guidelines offense level. Yutronic’s ultimate sentence reflects

a 50-month downward departure from the statutory mandatory minimum and we hold that, in this

case, a sentence at the bottom of the Guidelines range is not substantively unreasonable.

       While Abad argues on appeal that his sentence of 108 months is substantively unreasonable,

clearly the district court based the sentence upon an appropriate evaluation of the factors set forth at

18 U.S.C. § 3553(a). “I have considered Title 19 of the United States Code, Section 3553(a) very

carefully in this case, as I do in all cases, and I think that my sentence will comport with the

requirements of 3553(a). I recognize that the guidelines are only advisory, that they are not

mandatory and that I am not required to sentence under the guidelines. And as a matter of fact, I am

going to sentence a little bit under the guidelines for the criminal history category II at an offense

level of 31.” The district court also reviewed the sentencing submission (and letters of support from

family members and friends) made by the defense counsel which, among other things, described

Abad’s family circumstances, his past employment, his medical condition, and his pending

deportation. The 108 month sentence imposed by the district court ― which was below the 121 to

151 month guideline range ― was not substantively unreasonable.



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II.    Abad’s Ineffective Assistance of Counsel Claim

       Finally, Abad argues that his counsel rendered constitutionally ineffective assistance in

connection with Abad’s change of plea and sentencing proceedings. Specifically, he asserts that

his counsel failed to include Abad in any case preparation and told Abad that he would have to

“inaccurately admit his guilt to Money Laundering if Abad wanted a plea offer from the

Government that contained a mandatory minimum term of 5 years in prison.” Abad also claims

that he only pled guilty because his counsel had promised that Abad’s total period of incarceration

would not exceed five years. With respect to his sentencing, Abad argues that he received

ineffective assistance of counsel because his attorney did not consult him in preparing the

sentencing memorandum. “When faced with a claim for ineffective assistance of counsel on direct

appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a

subsequent petition for [a] writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim

to the district court for necessary factfinding; or (3) decide the claim on the record before us.”

United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003). At this time, we decline to consider

Abad’s argument regarding ineffective assistance of counsel. Abad may of course pursue this

claim in a petition for [a] writ of habeas corpus under 28 U.S.C. § 2255. We express no views as to

the merits of his claim.

       We have considered the defendants-appellants’ remaining arguments and find them to be

without merit. For the foregoing reasons we AFFIRM the judgment of the district court and

DISMISS without prejudice Abad’s ineffective assistance of counsel claim.

                                                      FOR THE COURT:
                                                      Catherine O=Hagan Wolfe, Clerk


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