16-2525
United States v. Del Valle

                     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
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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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 5th day of July, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             PIERRE N. LEVAL,
             REENA RAGGI,
                           Circuit Judges.

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    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               16-2525

    JOSEPH DEL VALLE,
             Defendant-Appellant.
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    FOR APPELLANT:                        BRENDAN WHITE, White & White,
                                          New York, NY.

    FOR APPELLEE:                         DAMIAN WILLIAMS (Aimee Hector
                                          and Brian R. Blais, on the
                                          brief), for Joon H. Kim, Acting
                                          United States Attorney for the
                                          Southern District of New York.

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

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Defendant Joseph Del Valle pleaded guilty to various
fraud charges in the United States District Court for the
Southern District of New York (Berman, J.). Del Valle does
not challenge his conviction; his only argument on appeal is
that his 98-month sentence is substantively unreasonable.
We assume the parties’ familiarity with the underlying
facts, the procedural history, and the issues presented for
review.

     We review sentences for “reasonableness,” which is “a
particularly deferential form of abuse-of-discretion
review.” United States v. Broxmeyer, 699 F.3d 265, 278 (2d
Cir. 2012) (quoting United States v. Cavera, 550 F.3d 180,
188 & n.5 (2d Cir. 2008) (in banc)). We will overturn a
sentence for substantive unreasonableness only if “the trial
court’s decision ‘cannot be located within the range of
permissible decisions.’” Cavera, 550 F.3d at 189 (quoting
United States v. Rigas, 490 F.3d 108, 114 (2d Cir. 2007)).

     Del Valle’s within-Guidelines sentence is reasonable.
Del Valle perpetuated his fraud for approximately ten years
and he misappropriated more than $5 million. To convince
investors to fund his schemes, Del Valle fabricated emails
(purporting to be written by famous chefs and
businesspeople) that expressed support for Del Valle’s
business ventures, and then sent the fraudulent emails to
potential clients to raise money. When some clients began
to be suspicious and requested documentation, Del Valle
falsely assured them that he was having financial statements
prepared that would be sent to the investors shortly. Del
Valle had previously been convicted of criminal possession
of a forged instrument.

     In arguing that his sentence is too onerous, Del Valle
emphasizes that he worked hard in a new business venture so
that he could make money in order to pay restitution, and
that one of the fraud victims continued to conduct business
with him after Del Valle pleaded guilty. Del Valle contends
that this shows his work ethic, business sense, and reformed
character. He also contends that the district court

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inadequately considered his personal characteristics, namely
that he is sixty years old and is devoted to his family.

     These contentions are unavailing. The district court
considered all of Del Valle’s arguments, weighed them
against the aggravating factors, and arrived at his 98-month
sentence. In light of the magnitude of Del Valle’s fraud,
the devious means he employed to bilk his victims, and other
factors mentioned by the district court, we cannot say that
Del Valle’s sentence was outside the “range of permissible
decisions.” Cavera, 550 F.3d at 189.

     In particular, we are unpersuaded by Del Valle’s
reliance on his entry into a new business venture with a
former victim in order to recompense his other victims. At
most, Del Valle is arguing that the district court afforded
insufficient weight to this factor, but when “the ultimate
sentence is reasonable . . . we will not second guess the
weight (or lack thereof) that the judge accorded to a given
factor or to a specific argument made pursuant to that
factor.” United States v. Pope, 554 F.3d 240, 246-47 (2d
Cir. 2009) (quoting United States v. Fernandez, 443 F.3d 19,
34 (2d Cir. 2006)). Del Valle’s sentence is reasonable, and
we do not disturb it.

     For the foregoing reasons, and finding no merit in Del
Valle’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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