     10-0571-cr
     United States v. Nash

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14
15                    Appellee,
16
17                    -v.-                                               10-0571-cr
18
19       UGANDA NASH, a.k.a. BOO,
20
21                Defendant-Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:            Malvina Nathanson
25                                 Law Office of Malvina Nathanson
26                                 New York, NY
27
28

                                                  1
 1   FOR APPELLEE:     Daniel A. Braun
 2                     Avi Weitzman
 3                     Katherine Polk Failla
 4                     U.S. Attorney’s Office, Southern District
 5                     of New York
 6                     New York, NY
 7
 8        Appeal from a sentence imposed by the United States
 9   District Court for the Southern District of New York
10   (Kaplan, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the district court’s sentence is AFFIRMED.
14
15        Uganda Nash challenges the 151-month prison sentence
16   imposed by the United States District Court for the Southern
17   District of New York after Nash was convicted of bank fraud
18   and conspiracy to commit bank fraud. We assume the parties’
19   familiarity with the underlying facts, the procedural
20   history, and the issues presented for review.
21
22        Appellate review of a district court’s sentence has two
23   components: procedural review and substantive review.
24   United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)
25   (in banc). If the appellate court finds no procedural
26   error, the substantive review is done for abuse of
27   discretion. Id. at 187 (citing Gall v. United States, 552
28   U.S. 38, 46 (2007)). Under that standard, an appellate
29   court will vacate the district court’s sentence only in
30   “exceptional cases where the trial court’s decision ‘cannot
31   be located within the range of permissible decisions.’”
32   Cavera, 550 F.3d at 189 (quoting United States v. Rigas, 490
33   F.3d 208, 238 (2d Cir. 2007)).
34
35        “A district court commits procedural error where it
36   fails to calculate the Guidelines range (unless omission of
37   the calculation is justified), makes a mistake in its
38   Guidelines calculation, or treats the Guidelines as
39   mandatory. It also errs procedurally if it does not
40   consider the § 3553(a) factors, or rests its sentence on a
41   clearly erroneous finding of fact.” Cavera, 550 F.3d at 190
42   (internal citations omitted). The district court made no
43   such errors. The district court used the applicable
44   Guidelines range as a starting point in its sentencing
45   decision. And in sentencing Nash to 151 months, the
46   district court did not rely in any way (explicitly or


                                  2
 1   implicitly) on the sentencing enhancement for an offense
 2   involving ten or more victims.
 3
 4        In reviewing the substantive fairness of a district
 5   court’s sentencing decision, we “take into account the
 6   totality of the circumstances, giving due deference to the
 7   sentencing judge’s exercise of discretion and bearing in
 8   mind the institutional advantages of district courts.”
 9   Cavera, 550 F.3d at 190. If a judge locates his sentence
10   within the Guidelines range, it “significantly increases the
11   likelihood that the sentence is a reasonable one,” because
12   it shows that both the judge and the Sentencing Commission
13   have reached the same conclusion about the proper sentence.
14   Rita v. United States, 551 U.S. 338, 347 (2007). We “will
15   not second guess the weight (or lack thereof) that the judge
16   accorded to a given factor or to a specific argument made
17   pursuant to that factor.” United States v. Pope, 554 F.3d
18   240, 247 (2d Cir. 2009) (quoting United States v. Fernandez,
19   443 F.3d 19, 34 (2d Cir. 2006)).
20
21        The district court sentenced Nash within the applicable
22   Guidelines range, and it was well within its discretion to
23   conclude that the elimination of the ten-or-more-victims
24   sentencing enhancement should only reduce Nash’s sentence by
25   four months. The fact that the new sentence is at the top
26   of the recalculated Guidelines range while the previous
27   sentence was near the bottom of the prior Guidelines range
28   is irrelevant.
29
30        The district court committed no procedural error, and
31   the sentence it imposed was reasonable and certainly within
32   “the range of permissible decisions.” As a result, we
33   hereby AFFIRM the sentence.
34
35                              FOR THE COURT:
36                              CATHERINE O’HAGAN WOLFE, CLERK
37




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