     06-1292-cr
     United States v. Villafuerte

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3

4                                   August Term 2006

5        (Argued: May 23, 2007                Decided: September 21, 2007)

6                              Docket No. 06-1292-cr

7    -------------------------------------------------------x

8    UNITED STATES OF AMERICA,

9                            Appellee,

10               -- v. --

11   JORGE VILLAFUERTE, also known as George,

12                           Defendant-Appellant.

13   -------------------------------------------------------x

14   B e f o r e :      WALKER and CABRANES, Circuit Judges, and GOLDBERG,
15                      Judge.*
16

17          Appeal from a judgment of the United States District Court

18   for the Northern District of New York (Gary L. Sharpe, Judge),

19   sentencing the defendant-appellant to a 70-month term of

20   imprisonment.

21          AFFIRMED.

22                                       MOLLY CORBETT, Assistant Federal
23                                       Public Defender (Alexander Bunin,


     *
       The Honorable Richard W. Goldberg, United States Court of
     International Trade, sitting by designation.
                                    -1-
1                                   Federal Public Defender for the
2                                   Northern District of New York,
3                                   George E. Baird, Assistant Federal
4                                   Public Defender, on the brief),
5                                   Albany, New York, for Defendant-
6                                   Appellant.

 7                                  BRENDA K. SANNES, Assistant United
 8                                  States Attorney (Glenn T. Suddaby,
 9                                  United States Attorney for the
10                                  Northern District of New York,
11                                  Richard S. Hartunian, Assistant
12                                  United States Attorney, on the
13                                  brief), Syracuse, New York, for
14                                  Appellee.

15   JOHN M. WALKER, JR., Circuit Judge:

16        This case requires us to determine the consequences of a

17   criminal defendant’s failure to object to a district court’s

18   method of discharging some of its duties under 18 U.S.C. § 3553.

19   Defendant-appellant Jorge Villafuerte appeals from a March 8,

20   2006 judgment of the district court for the Northern District of

21   New York (Gary L. Sharpe, Judge), arguing that the district court

22   erred by (1) concluding that the sentence recommended by the

23   United States Sentencing Guidelines (“Guidelines”) accounted for

24   the factors under § 3553(a) and (2) failing to state adequately

25   its reasons for imposing the chosen sentence, as required by §

26   3553(c).   We need not decide whether there was any error; because

27   Villafuerte failed to object below, both challenges are subject

28   to plain error analysis, and neither alleged error is plain.

29                               BACKGROUND

30        Villafuerte was indicted with five co-defendants for

31   conspiring to possess with intent to distribute and conspiring to
                                    -2-
1    distribute over five hundred grams of cocaine in violation of 21

2    U.S.C. §§ 841(a)(1) and 846.    Villafuerte pled guilty without a

3    plea agreement and, five months later, was sentenced.

4         The revised Presentence Report (“PSR”) calculated a

5    sentencing range under the Guidelines of 70 to 87 months, which

6    the parties did not contest.    Villafuerte argued for a below-

7    Guidelines sentence based upon several circumstances: His strong

8    family ties, his drug usage since an early age, his remorse for

9    his crime and its effect on his family, the fact that he had been

10   gainfully employed for most of his adult life, and his lack of

11   prior convictions.    Villafuerte also contended that the PSR’s

12   recommended sentence was greater than necessary and did not

13   further the purposes of sentencing.

14        Unpersuaded, the district court adopted the PSR’s

15   calculations and proposed sentence range and sentenced

16   Villafuerte to a 70-month term of imprisonment, the bottom of the

17   Guidelines range.    It rejected his argument with respect to drug

18   usage, finding that although Villafuerte was a drug abuser, his

19   crime was not “drug-use induced” but rather “money-induced,” as

20   shown by his purchase of a house in Texas with some of the

21   profits.   The district court sympathized with Villafuerte’s

22   family situation but found that the effect of conviction on them

23   was “irrelevant” because it was the natural consequence of

24   Villafuerte’s decision to commit the crime.    Finally, the court

25   said:
                                      -3-
1           In this case, I find that the advisory guidelines take
2           into account all of the 3553(a) factors and the other
3           factors, in terms of determining what’s an appropriate
4           sentence, and I believe that the bottom of the advisory
5           guideline range is the minimum, that is a fair
6           sentence, in terms of the conduct that’s involved here.
7
8    Villafuerte did not object to this statement or his sentence

9    during the hearing.    He now appeals his sentence.

10                                DISCUSSION

11          We review a district court’s sentencing decisions for both

12   substantive and procedural reasonableness.     United States v.

13   Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006).      Reasonableness

14   review is similar to review for abuse of discretion and may

15   require reversal when the district court’s decision “cannot be

16   located within the range of permissible decisions” or is based on

17   a legal error or clearly erroneous factual finding.      United

18   States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (internal

19   quotation marks omitted).    Substantive reasonableness involves

20   the length of the sentence imposed in light of the factors

21   enumerated under 18 U.S.C. § 3553(a).     Rattoballi, 452 F.3d at

22   132.    Procedural reasonableness concerns the procedures a

23   district court employs in arriving at a sentence.      United States

24   v. Canova, 485 F.3d 674, 679 (2d Cir. 2007).     To impose a

25   procedurally reasonable sentence, see United States v.

26   Giovanelli, 464 F.3d 346, 355 (2d Cir. 2006) (per curiam);

27   Rattoballi, 452 F.3d at 131, a district court must (1) normally

28   determine the applicable Guidelines range, (2) consider the

                                      -4-
1    Guidelines along with the other factors under § 3553(a), and (3)

2    determine whether to impose a Guidelines sentence or a non-

3    Guidelines sentence, see United States v. Crosby, 397 F.3d 103,

4    111-13 (2d Cir. 2005); see also United States v. Fernandez, 443

5    F.3d 19, 26 (2d Cir. 2006).

6         We review the district court’s interpretation of the

7    Guidelines de novo and its findings of fact for clear error.

8    Rattoballi, 452 F.3d at 131.

9         I.   Consideration of the 18 U.S.C. § 3553(a) Factors

10        Villafuerte argues, for the first time on appeal, that his

11   sentence is unreasonable because the district court, in

12   concluding that a sentence under the Guidelines accounted for all

13   the § 3553(a) factors in his case, failed to consider the §

14   3553(a) factors.   18 U.S.C. § 3553(a) requires the district court

15   to consider:

16        (1) the nature and circumstances of the offense and the
17        history and characteristics of the defendant;
18        (2) the need for the sentence imposed--
19        (A) to reflect the seriousness of the offense, to
20        promote respect for the law, and to provide just
21        punishment for the offense;
22        (B) to afford adequate deterrence to criminal conduct;
23        (C) to protect the public from further crimes of the
24        defendant; and
25        (D) to provide the defendant with needed educational or
26        vocational training, medical care, or other
27        correctional treatment in the most effective manner;
28        (3) the kinds of sentences available;
29        (4) the kinds of sentence and the sentencing range
30        established [and recommended by the Guidelines] . . . ;
31        (5) any pertinent policy statement . . . issued by the
32        Sentencing Commission . . . ;


                                     -5-
1         (6) the need to avoid unwarranted sentence disparities
2         among defendants with similar records who have been
3         found guilty of similar conduct; and
4         (7) the need to provide restitution to any victims of
5         the offense.

6    We conclude that Villafuerte’s failure to object below is fatal

7    to this claim of error.

8         When a party properly objects to a sentencing error in the

9    district court, we review for harmless error.    See United States

10   v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam); see also

11   Fed. R. Crim. P. 52(a).    By contrast, issues not raised in the

12   trial court because of oversight, including sentencing issues,

13   are normally deemed forfeited on appeal unless they meet our

14   standard for plain error.    United States v. Keppler, 2 F.3d 21,

15   23 (2d Cir. 1993); see also Fed. R. Crim. P. 52(b); United States

16   v. Yu-Leung, 51 F.3d 1116, 1121-22 (2d Cir. 1995) (distinguishing

17   forfeiture from waiver).    We have long stated, however, that we

18   may sometimes review sentencing issues without full plain error

19   analysis “despite lack of objection at trial . . . [although]

20   such consideration is not assured.”    United States v. Baez, 944

21   F.2d 88, 90 (2d Cir. 1991); see also United States v. Keigue, 318

22   F.3d 437, 441 (2d Cir. 2003) (noting the two types of review for

23   unraised sentencing errors); United States v. Sofsky, 287 F.3d

24   122, 125 (2d Cir. 2002).

25        When a defendant does not object to a district court’s

26   alleged failure to properly consider all of the § 3553(a)

27   factors, it is unclear under our prior case law whether we review
                                      -6-
1    for plain error or under a less rigorous standard.1    See United

2    States v. Pereira, 465 F.3d 515, 520 (2d Cir. 2006).     Recently,

3    we applied plain error analysis to this sort of error without

4    providing any rationale for the choice.     See United States v.

5    Carter, 489 F.3d 528, 537 (2d Cir. 2007).    In that case, however,

6    we ultimately held that there was no error at all and applied

7    none of the other requirements of plain error, see id. at 540-41,

8    arguably rendering its decision to review for plain error obiter

9    dictum.   Regardless of whether Carter prevents us from applying a

10   less rigorous standard, we now expressly hold that rigorous plain

11   error analysis is appropriate for such unpreserved errors.

12        Vacatur for sentencing error does not always come at the

13   same cost as vacatur for trial error, in part because “noticing

14   unobjected to errors that occur at trial precipitates an entire

15   new trial that could have been avoided by a timely objection,

16   whereas correcting a sentencing error results in, at most, only a

17   remand for resentencing.”   Sofsky, 287 F.3d at 125; see also

18   United States v. Williams, 399 F.3d 450, 455-57 (2d Cir. 2005)

19   (comparing the costs and effects of correcting unpreserved trial

20   errors with correcting unpreserved sentencing errors).    This cost


     1
       Our case law indicates that a less rigorous standard may not
     require strict compliance with all the requirements of plain
     error, see, e.g., United States v. Simmons, 343 F.3d 72, 80 (2d
     Cir. 2003), or may even allow relief due solely to prejudicial
     error, see, e.g., United States v. Goffi 446 F.3d 319, 321 (2d
     Cir. 2006) (dictum). Because we hold that full plain error
     analysis applies to the types of claims at issue, we need not
     define the precise content of a less rigorous standard.
                                    -7-
1    differential motivated us in Crosby to mandate limited remands to

2    dispose of unpreserved Booker procedural errors in direct appeals

3    of pre-Booker sentences.   See 397 F.3d at 116-17.   For similar

4    reasons with respect to sentencing issues in general, we have

5    been more likely to avoid the full rigors of plain error analysis

6    when the sentence was imposed without giving the appellant -

7    whether the government or the defendant - prior notice of the

8    aspect of the sentence challenged on appeal.    See Sofsky, 287

9    F.3d at 125-26; see also United States v. Gilmore, 471 F.3d 64,

10   66 (2d Cir. 2006) (stating, without deciding, that these

11   circumstances might be met for the error at issue); Simmons, 343

12   F.3d at 80.   On the other hand, we have declined to overlook a

13   lack of objection where the sentencing issue was “not

14   particularly novel or complex,” see Keppler, 2 F.3d at 24, or

15   where the case had already been remanded for careful

16   reconsideration of the sentence, see Baez, 944 F.2d at 90.

17        With this in mind, we hold that plain error analysis should

18   apply to the sort of error at issue here.    Because we have

19   unambiguously required consideration of the § 3553(a) factors, in

20   addition to the now-advisory Guidelines, in every criminal

21   sentencing proceeding since we issued Crosby shortly after the

22   Supreme Court decided Booker, see Crosby, 397 F.3d at 115, we

23   cannot view this class of issues as novel.    Because Villafuerte

24   was sentenced more than a year after our landmark decision in

25   Crosby, his counsel was plainly aware of the district court’s
                                    -8-
1    obligation to consider the § 3553(a) factors.    Although we have

2    noted that proper consideration of those factors “is not a

3    cut-and-dried process of factfinding and calculation,” Fernandez,

4    443 F.3d at 29, raising an objection to the failure to do so in

5    order to alert the district court to the problem is neither

6    difficult nor onerous.    This requirement alerts the district

7    court to a potential problem at the trial level and facilitates

8    its remediation at little cost to the parties, avoiding the

9    unnecessary expenditure of judicial time and energy in appeal and

10   remand.   This conclusion, moreover, is consistent with several of

11   our sister circuits.     See, e.g., United States v. Eversole, 487

12   F.3d 1024, 1029, 1034-35 (6th Cir. 2007); United States v.

13   Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007); United States v.

14   Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (dealing specifically

15   with the parsimony clause of § 3553(a)); United States v. Knows

16   His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006).

17        To establish plain error, the defendant must establish (1)

18   error (2) that is plain and (3) affects substantial rights.

19   United States v. Banks, 464 F.3d 184, 189 (2d Cir. 2006); United

20   States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002); see also United

21   States v. Olano, 507 U.S. 725, 732 (1993).    If the error meets

22   these initial requirements, we then must consider whether to

23   exercise our discretion to correct it, which is appropriate only

24   if the error seriously affected the “fairness, integrity, or

25   public reputation of the judicial proceedings.”    Doe, 297 F.3d at
                                      -9-
1    82.   We must also keep in mind the Supreme Court’s guidance that

2    reversal for plain error should “be used sparingly, solely in

3    those circumstances in which a miscarriage of justice would

4    otherwise result.”   United States v. Frady, 456 U.S. 152, 163

5    n.14 (1982).

6          To begin with, there is a question here of whether the

7    district court committed any error at all.    In recently holding

8    that courts of appeals may presume that a properly calculated,

9    within-Guidelines sentence is reasonable, the Supreme Court

10   stated that the Guidelines “seek to embody the § 3553(a)

11   considerations, both in principle and in practice . . . [and] it

12   is fair to assume that the Guidelines, insofar as practicable,

13   reflect a rough approximation of sentences that might achieve §

14   3553(a)’s objectives.”     Rita v. United States, 127 S. Ct. 2456,

15   2464-65 (2007); see also Rattoballi, 452 F.3d at 133 (“[T]he

16   Sentencing Commission is an expert agency whose statutory charge

17   mirrors the § 3553(a) factors that the district courts are

18   required to consider.”).    Similarly, we have held that a

19   “sentencing judge’s decision to place special weight on the

20   recommended guideline[s] range will often be appropriate, because

21   the Sentencing Guidelines reflect the considered judgment of the

22   Sentencing Commission, are the only integration of the multiple

23   [§ 3553(a)] factors and, with important exceptions, . . . were

24   based upon the actual sentences of many judges.”     United States

25   v. Capanelli, 479 F.3d 163, 165 (2d Cir. 2007) (per curiam)
                                      -10-
1    (citations and internal quotation marks omitted) (alteration in

2    original).   Consequently, a district court’s imposition of a

3    within-Guidelines sentence based upon its conclusion that the

4    Guidelines account for the § 3553(a) factors in that particular

5    case does not necessarily constitute error.    In any event, we

6    need not decide whether the district court erred here because any

7    possible error is not plain.

8         To be plain, the error must be clear or obvious, Olano, 507

9    U.S. at 734, at the time of appellate review, United States v.

10   Stewart, 433 F.3d 273, 290 (2d Cir. 2006).    In fact, the

11   threshold is high enough that the Supreme Court has stated that

12   the error must be so plain that “the trial judge and prosecutor

13   were derelict in countenancing it, even absent the defendant’s

14   timely assistance in detecting it.”   Frady, 456 U.S. at 163; see

15   also United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001)

16   (en banc).

17        Even if the district court erred in concluding that the

18   Guidelines accounted for the § 3553(a) factors in this case, we

19   cannot say that the error is plain.   Before Villafuerte’s

20   sentencing, we said that the Guidelines may serve as a sentencing

21   court’s “benchmark or a point of reference or departure.”     United

22   States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005).     And it

23   is not obvious that the district court used the Guidelines range

24   as anything other than a benchmark here.   Its statements at the

25   sentencing hearing clearly show that it knew that the Guidelines
                                    -11-
1    were only advisory and that it had to consider, among other

2    things, the § 3553(a) factors.   It also made clear the advisory

3    Guidelines “[i]n this case . . . take into account all of the

4    3553(a) factors and other factors” and that “the advisory

5    guideline range is the minimum, that is a fair sentence, in terms

6    of the conduct that’s involved here.”   In considering the

7    Guidelines as a starting point and finding that Villafuerte’s

8    several § 3553(a) arguments did not merit deviation,2 any error,

9    assuming there was one, was not obvious.

10        II.   Statement of Reasons Under 18 U.S.C. § 3553(c)

11        Villafuerte next argues that the district court failed to

12   satisfy its obligation under 18 U.S.C. § 3553(c) to give the

13   reasons for imposing its chosen sentence.   Section 3553(c)

14   provides in relevant part:

15        The court, at the time of sentencing, shall state in
16        open court the reasons for its imposition of the
17        particular sentence, and, if the sentence--
18        (1) is of the kind, and within the range, described in
19        subsection (a)(4) and that range exceeds 24 months, the
20        reason for imposing a sentence at a particular point
21        within the range; or
22        (2) is not of the kind, or is outside the range,
23        described in subsection (a)(4), the specific reason for
24        the imposition of a sentence different from that
25        described, which reasons must also be stated with
26        specificity in the written order of judgment and
27        commitment . . . .
28

     2
       The record further shows that the district court considered the
     gravity of Villafuerte’s § 3553(a) arguments: It recommended that
     he participate in a drug treatment program in prison and that he
     be placed in a facility as close to his family as possible, both
     of which Villafuerte requested.
                                    -12-
1    18 U.S.C. § 3553(c).   This requirement serves the important goals

2    of (1) informing the defendant of the reasons for his sentence,

3    (2) permitting meaningful appellate review, (3) enabling the

4    public to learn why the defendant received a particular sentence,

5    and (4) guiding probation officers and prison officials in

6    developing a program to meet the defendant’s needs.     United

7    States v. Molina, 356 F.3d 269, 277 (2d Cir. 2003) (citing S.

8    Rep. No. 98-225, at 79-80 (1983), as reprinted in 1984

9    U.S.C.C.A.N. 3182, 3262-63).   The district court must meet this

10   obligation post-Booker.    Crosby, 397 F.3d at 116.

11         While this requirement does not require the district court

12   to issue a “full opinion in every case,” the length and level of

13   detail required varies depending upon the circumstances.     Rita,

14   127 S. Ct. at 2468.    When the district court imposes a Guidelines

15   sentence, it may not need to offer a lengthy explanation,

16   particularly where the parties have not argued meaningfully

17   against a Guidelines sentence under § 3553(a) or for a departure.

18   Id.   Non-frivolous arguments for a non-Guidelines sentence, on

19   the other hand, may require more discussion.    Id.   Nonetheless,

20   we do not insist that the district court address every argument

21   the defendant has made or discuss every § 3553(a) factor

22   individually.   Fernandez, 443 F.3d at 30.   We do not “prescribe

23   any formulation a sentencing judge will be obliged to follow in

24   order to demonstrate discharge of the duty to ‘consider’ the

25   Guidelines.   In other words, we will no more require ‘robotic
                                     -13-
1    incantations’ by district judges than we did when the Guidelines

2    were mandatory.”     Crosby, 397 F.3d 103, 113 (2d Cir. 2005).   And

3    we remain disinclined to require a “more compelling accounting

4    the farther a sentence deviates from the advisory Guidelines

5    range.”3   Sindima, 488 F.3d at 85-86 (quoting Rattoballi, 452

6    F.3d at 134).

7         As with his previous claim of error, Villafuerte failed to

8    object below to the district court’s allegedly insufficient

9    statement of reasons.     And as with the previous claim of error,

10   it is unclear whether we should review this unpreserved claim for

11   plain error.    Several decisions have noted this uncertainty and

12   then decided not to address the issue because it was irrelevant

13   to their outcomes.     See, e.g., Pereira, 465 F.3d at 520; Goffi,

14   446 F.3d at 321; United States v. Lewis, 424 F.3d 239, 243 (2d

15   Cir. 2005).    Another decision applied plain error analysis but

16   without discussing why a sentencing error based on § 3553(c) is

17   not afforded an exception.     See Molina, 356 F.3d at 277.   And

18   another decision held that failure to comply with § 3553(c), at



     3
       As a matter of practicality, however, “our own ability to
     uphold a sentence as reasonable will be informed by the district
     court’s statement of reasons (or lack thereof) for the sentence
     that it elects to impose.” Rattoballi, 452 F.3d at 134.
     Accordingly, in the absence of a compelling accounting, we may be
     forced to vacate a sentence that deviates significantly from the
     advisory Guidelines range “where the record is insufficient, on
     its own, to support the sentence as reasonable.” Id. at 135; see
     also Pereira, 465 F.3d at 524. In its 2007 term, the Supreme
     Court will address this issue in Gall v. United States. Rita,
     127 S. Ct. at 2467.
                                    -14-
1    least where there cannot be adequate appellate review, can render

2    a sentence “imposed in violation of law,” requiring vacatur.      See

3    United States v. Zackson, 6 F.3d 911, 923-24 (2d Cir. 1993).

4         We now hold that plain error analysis in full rigor applies

5    to unpreserved claims that a district court failed to comply with

6    § 3553(c).   Section 3553(c)’s long-standing requirements present

7    no novel or complex issues meriting greater consideration for its

8    violation: A defense counsel can quickly decide whether he is

9    dissatisfied with the district court’s explanation and promptly

10   object.   See Keppler, 2 F.3d at 24; see also United States v.

11   Romero, - F.3d -, 2007 WL 1874231, at *4 (10th Cir. June 29,

12   2007) (noting that requiring objection for failure to follow a

13   well-known requirement such as § 3553(c) is not burdensome).

14   Further, the public interest underlying § 3553(c) is better

15   advanced when the district court is informed of its error

16   promptly at sentencing so that it can promptly correct it rather

17   than after a lengthy period of appellate review; to the extent

18   inadequately stated reasons for the sentence erode public trust

19   and understanding, correction earlier rather than later promotes

20   respect for the process.   See Lewis, 424 F.3d at 247.   The

21   district court is also better positioned to articulate its

22   reasons during the first sentencing hearing rather than long

23   after the fact.   Requiring the error to be preserved by an

24   objection creates incentives for the parties to help the district

25   court meet its obligations to the public and the parties.      Cf.
                                    -15-
1    United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)

2    (stating that one of the policy goals of Rule 52(b) is “to

3    encourage timely objections and reduce wasteful reversals by

4    demanding strenuous exertion to get relief for unpreserved

5    error”).    This holding is consistent with several of our sister

6    circuits.   See, e.g., Romero, 2007 WL 1874231, at *4; Eversole,

7    487 F.3d at 1035 (“[C]ompliance with section 3553(c) . . .

8    generally will not amount to plain error because proof that it

9    affects the defendant’s substantial rights is difficult.”);

10   United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007);

11   United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006).

12        Putting aside our doubts as to whether the district court

13   failed to comply with § 3553(c), any such error is certainly not

14   plain.   The district court imposed a sentence at the bottom of

15   the Guidelines range, and such sentences often will not require

16   lengthy explanation.    See Rita, 127 S. Ct. at 2468.   And the

17   district court did not blindly rest on the existence of the

18   Guidelines: It stated that the Guidelines already accounted for

19   the § 3553(a) factors in this case.    Moreover, it found that the

20   bottom of the Guidelines range was “a fair sentence” given

21   Villafuerte’s conduct, which can be a proper basis for imposing a

22   particular sentence.    See United States v. Jones, 460 F.3d 191,

23   195 (2d Cir. 2006) (“[T]he judge is not prohibited from including

24   in [his] consideration [of the § 3553(a) factors] the judge’s own

25   sense of what is a fair and just sentence under all the
                                     -16-
1    circumstances.”).   While the district court did not recite its

2    thoughts on each of the § 3553(a) factors, it is clear that we

3    impose no such general requirement.   See Goffi, 446 F.3d at 321.

4    “[W]e will not conclude that a district judge shirked [his]

5    obligation to consider the § 3553(a) factors simply because []he

6    did not discuss each one individually or did not expressly parse

7    or address every argument relating to those factors that the

8    defendant advanced.”   Fernadez, 443 F.3d at 30.

9         The district court was not mute at sentencing; it offered

10   reasons for rejecting Villafuerte’s arguments for a non-

11   Guidelines sentence.   It stated that it rejected Villafuerte’s

12   argument with respect to his drug abuse because the crime was

13   motivated by money rather than drug use.   It also explained that

14   it found his argument with respect to his family situation

15   irrelevant under the circumstances.   Finally, the district court

16   stated that it would not consider an earlier drug bust involving

17   Villafuerte in which marijuana was found because no conviction

18   resulted.   Given this level of detail, it is not obvious that the

19   district court was derelict in discharging its § 3553(c) duty.

20                               CONCLUSION

21        The judgment of the district court is AFFIRMED.




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