11-2424-cr
USA v. Cordoba-Bermudez

                           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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of August, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
         PETER W. HALL,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                    No. 11-2424-cr

LUIS FERNANDO MORA-PESTANA, JULIO ENRIQUE LEMOS-MORENO, RUBEN
SEGURA HAROLD ALVAREZ,

           Defendants,

JUANITO CORDOBA-BERMUDEZ, AKA Juanito, AKA Chechere,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                         FRANCISCO E. CELEDONIO, Law Office of
                                                 Francisco E. Celedonio, Esq., New York, N.Y.
For Appellee:                                     JEFFREY A. BROWN (Rebecca Monck
                                                  Ricigliano, Justin S. Weddle, on the brief),
                                                  Assistant United States Attorneys, for Preet
                                                  Bharara, United States Attorney for the
                                                  Southern District of New York, New York,
                                                  N.Y.


       Appeal from the United States District Court for the Southern District of New York
(Chin, J.).*

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

           Defendant-appellant Juanito Cordoba-Bermudez (“Cordoba” or the “defendant”)

appeals from a judgment of conviction entered on June 6, 2011 in the United States District

Court for the Southern District of New York (Chin, J.), following a guilty plea to the sole count

in the indictment, conspiracy to provide material support to a foreign terrorist organization, in

violation of 18 U.S.C. § 2339B. On June 1, 2011, the district court principally sentenced

Cordoba to a term of 180 months’ incarceration. On appeal, Cordoba contends that the sentence

is procedurally flawed because the district court failed to address defense arguments at

sentencing and failed to fully explain how its sentence fulfills the goals of the Sentencing

Reform Act, 18 U.S.C. § 3553. He also contends that the sentence is substantively unreasonable

because the district court failed to give adequate weight to the defendant’s personal

characteristics, including his diminished capacity and his post-traumatic stress disorder. We

presume the parties’ familiarity with the facts and procedural history of this case.




       *
          The Honorable Denny Chin, of the United States Court of Appeals for the Second
Circuit, sitting by designation.

                                                 2
       We review a district court’s “sentence for reasonableness, which is ‘akin to review for

abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds

of allowable discretion, committed an error of law in the course of exercising discretion, or made

a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)

(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). “A district

court commits procedural error where it fails to calculate the Guidelines range (unless omission

of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the

Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a

clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United

States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (citation omitted). Where the Court

determines that there was no procedural error in a district court’s sentencing, it “then considers

the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,

taking into account the totality of the circumstances.” United States v. Rigas, 583 F.3d 108, 121

(2d Cir. 2009) (internal quotation marks omitted). Although we do not presume that a sentence

within the Guidelines range is reasonable, United States v. Dorvee, 616 F.3d 174, 183 (2d Cir.

2010), a district court’s substantive findings will be set aside 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).

       The defendant first argues that the district court procedurally erred by failing to

adequately consider certain factors enumerated in 18 U.S.C. § 3553(a). Specifically, he argues

that the district court ignored all evidence that he was suffering from post-traumatic stress

disorder. This argument is unavailing. As an initial matter, “there is no requirement that the


                                                  3
court mention the required factors, much less explain how each factor affected the court’s

decision.” United States v. Banks, 464 F.3d 184, 190 (2d Cir. 2006). Moreover, in this

particular case, the record reflects that the district court did consider all of the defendant’s

arguments regarding his psychological disorders. Indeed, the district court stated that it had read

the submissions of the psychologists who evaluated Cordoba, but that it was “not persuaded that

there was anything other than complete volition here.” J.A. 174.

       The district court also addressed the other factors raised by the defense, including the

possibility of future prosecution in Panama, whether the terrorism enhancement overstated

Cordoba’s culpability, the seriousness of the offense, and the sentences imposed on other

defendants in similar circumstances. In addition to specifically addressing all of the arguments

made by the defendant, the district court expressly stated that it had “considered all of the

statutory factors,” had “read both psychologists’ reports carefully,” and had “taken into

account . . . [t]he submissions by the parties, the pre-sentence report” and the arguments

advanced by the parties at the sentencing proceeding. Id. at 171-72, 74. Accordingly, we reject

Cordoba’s challenge to the procedural reasonableness of his sentence.

       Having concluded that the sentence is procedurally reasonable, we next turn to the

defendant’s contention that the sentence is substantively unreasonable. Cordoba argues that the

sentence is unreasonably harsh in light of various factors, including his family circumstances, his

psychological disorders, and the fact that he potentially faces an additional ten year sentence due

to pending charges in Panama. We disagree. All of these factors were properly considered by

the district court and while certain factors may militate in the defendant’s favor, the district court

was entitled to conclude that other factors, including the fact that the defendant provided


                                                   4
military-grade weapons to a known, violent terrorist organization, warranted a harsher sentence.

Accordingly, we conclude that the sentence is within the “range of permissible decisions” that

the district court was entitled to make. Cavera, 550 F.3d at 191.

       We have considered all of the defendant’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                         FOR THE COURT:
                                         CATHERINE O’HAGAN WOLFE, CLERK




                                                5
