         09-1943-cr
         USA v. Catanzano



                                   UNITED STATES COURT OF APPEALS
                                         F OR T HE S ECOND C IRCUIT

                                                  SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 1 st day of February, two thousand and ten.

         Present: PIERRE N. LEVAL,
                  RICHARD C. WESLEY,
                                Circuit Judges,
                  JOHN GLEESON,
                                District Judge. *
         __________________________________________________

         UNITED STATES OF AMERICA,

                                         Appellee,

                         - v. -                                                    (09-1943-cr)

         TODD CATANZANO,

                           Defendant-Appellant.
         __________________________________________________




         *
            The Honorable John Gleeson, United States District Court for the Eastern
         District of New York, sitting by designation.
     For Appellant:               FREDERICK H. COHN, Law Office of
                                  Frederick H. Cohn, New York, New
                                  York.

     For Appellee:                MICHAEL D. MAIMIN, Assistant
                                  United States Attorney
                                  (Katherine Polk Failla,
                                  Assistant United States
                                  Attorney, on the brief), for
                                  Preet Bharara, United States
                                  Attorney for the Southern
                                  District of New York, New York,
                                  New York.

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

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the April 2, 2009 judgment of the United

 3   States District Court for the Southern District of New York

 4   is AFFIRMED.

 5       Defendant appeals from a judgment of conviction arising

 6   out of his guilty plea to one count of unlawfully conspiring

 7   to distribute and possess with intent to distribute more

 8   than fifty grams of methamphetamine, in violation of 21

 9   U.S.C. § 846.    Following his plea, defendant was sentenced

10   to five months’ imprisonment and five years’ supervised

11   release, with five months of his term of supervised release

12   to be served in a community confinement center.

13       Defendant’s sole argument in this appeal is that the

14   district court “f[a]iled to exercise the discretion required

                                    2
 1   of it” by “refusing to consider a sentence that does not

 2   include imprisonment.”     In essence, defendant urges us to

 3   attribute procedural error to the sentence imposed by the

 4   district court.   See United States v. Johnson, 567 F.3d 40,

 5   51-52 (2d Cir. 2009).

 6       We decline the invitation.      The district court’s

 7   Guidelines calculation is undisputed, and there is no

 8   question that the court considered the Guidelines on an

 9   advisory basis only.     We must also “presume, in the absence

10   of record evidence suggesting otherwise, that a sentencing

11   judge has faithfully discharged her duty to consider the

12   statutory factors” set forth in 28 U.S.C. § 3553(a).       United

13   States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006).

14   Finally, defendant’s argument proceeds on the basis of a

15   factual premise — i.e., that the district court “refus[ed]

16   to consider” a non-incarceratory sentence — that is

17   expressly belied by the record.     The sentencing judge stated

18   that he arrived at the sentence based on consideration of

19   “the combination of 18 U.S.C. Section 3553(a) factors . . .

20   including the nature and circumstances of the offense,” and

21   that “the reason . . . that there should not be a non-

22   incarcerative sentence has to do with the objectives of the


                                     3
 1   statute.”

 2       In light of the Fernandez presumption, and based on the

 3   transcript of the sentencing, we are satisfied that the

 4   district court was sufficiently aware of the parameters of

 5   its sentencing authority.   Put differently, there is a

 6   difference between a district court’s failure to acknowledge

 7   the scope of its sentencing discretion, and a decision to

 8   exercise that discretion in manner that is at odds with the

 9   arguments presented by a criminal defendant.   Our review of

10   the record indicates that this case falls squarely into the

11   latter category.   Accordingly, the April 2, 2009 judgment of

12   the district court is AFFIRMED.
13
14                               For the Court
15                               Catherine O’Hagan Wolfe, Clerk
16
17
18




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