13-1900-cr
United States v. FNU LNU

                                    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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
22nd day of September, two thousand fourteen.

PRESENT:
           JOSÉ A. CABRANES,
           RAYMOND J. LOHIER, JR.,
                                Circuit Judges.
           PAUL A. ENGELMAYER,*
                                District Judge.
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UNITED STATES OF AMERICA,

                     Appellee,
                     -v.-                                                                  No. 13-1900-cr

FNU LNU, AKA HERBERT WILFREDO, AKA RICHARDO HERNANDEZ, AKA GIRON DIAZ

                      Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                  Randall D. Unger, Law Offices of Randall D.
                                                                          Unger, Bayside, NY.

FOR APPELLEE:                                                             Matthew L. Schwartz, Kathryn M. Martin,
                                                                          Assistant United States Attorneys, for Preet
                                                                          Bharara, United States Attorney for the
                                                                          Southern District of New York, New York,
                                                                          NY.


              * The Honorable Paul A. Engelmayer, of the United States District Court for the Southern District of New
    York, sitting by designation.

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        Appeal from a May 9, 2013 judgment of the United States District Court for the Southern
District of New York (Kevin T. Duffy, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

         Defendant appeals the judgment of the District Court sentencing him principally to a term
of 72 months’ imprisonment after being found guilty by a jury of false statements in application for
a passport, in violation of 18 U.S.C. § 1542, false statements in applications for food stamps, in
violation of 18 U.S.C. § 1001(a)(2) and (3), false statements in applications for social security
benefits, in violation of 42 U.S.C. § 1383a(a)(1) and (2), and three counts of aggravated identity
theft, in violation of 18 U.S.C. § 1028A. On appeal, defendant contends (1) that he was denied
effective assistance of counsel because his counsel did not assert an insanity defense at trial, and
(2) that the sentence imposed by the District Court was both procedurally and substantively
unreasonable. We assume the parties’ familiarity with the underlying facts and the procedural history
of the case.

                                          DISCUSSION

A.     Ineffective Assistance of Counsel

        To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that
his counsel’s conduct “fell below an objective standard of reasonableness” and “affirmatively prove
prejudice,” showing that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668, 687–88, 693–94 (1984).

        However, we decline to address defendant’s claim at this time since “a motion brought under
[28 U.S .C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.”
Massaro v. United States, 538 U.S. 500, 504 (2003).

B.     Procedural and Substantive Unreasonableness

         “Criminal sentences are generally reviewed for reasonableness, which requires an
examination of the length of the sentence (substantive reasonableness) as well as the procedure
employed in arriving at the sentence (procedural reasonableness).” United States v. Chu, 714 F.3d 742,
746 (2d Cir. 2013) (internal quotation marks omitted). As we have explained, “[a] district court
commits procedural error where it fails to calculate (or improperly calculates) the Sentencing
Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.]
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain
the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). A district court is said to err “substantively” only in exceptional
cases, “where the trial court’s decision cannot be located within the range of permissible decisions.”

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United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted).
“[W]hen conducting substantive review, we take into account the totality of the circumstances,
giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the
institutional advantages of district courts.” Id. at 190; see generally United States v. Park, 758 F.3d 193
(2d Cir. 2014).

        Because defendant did not object at sentencing to the District Court’s alleged failure to
explain its reasoning, we review his procedural challenge for “plain error.” United States v. Villafuerte,
502 F.3d 204, 208 (2d Cir. 2007). Defendant argues that the District Court’s sentence was
procedurally unreasonable because the court (1) failed to calculate the applicable Guidelines range
and (2) failed to give proper consideration to the 18 U.S.C. § 3553(a) factors. Neither claim has
merit.

           i.   “Procedural Reasonableness”

          “A district court satisfies its obligation to make the requisite specific factual findings when it
explicitly adopts the factual findings set forth in the presentence report.” United States v. Molina, 356
F.3d 269, 275 (2d Cir. 2004). The District Court here expressly adopted the Presentence Report and
thereby fulfilled its obligation.

         The District Court also gave adequate consideration to the § 3553(a) factors. It is well
settled that a judge “need not utter robotic incantations repeating each factor that motivates a
sentence.” Park, 758 F.3d at 197 (internal quotation marks omitted). Rather, a district court
“demonstrate[s] the adequate discharge of the duty to ‘consider’ matters relevant to sentencing” if
the court “is aware of both the statutory requirements and the sentencing range or ranges that are
arguably applicable, and nothing in the record indicates misunderstanding about such materials or
misperception about their relevance[.]” United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).
Indeed, we have acknowledged that “[c]onsideration of the § 3553(a) factors is not a cut-and-dried
process of factfinding and calculation; instead, a district judge must contemplate the interplay among
the many facts in the record and the statutory guideposts.” United States v. Fernandez, 443 F.3d 19, 29
(2d Cir. 2006).

         The District Court plainly contemplated the facts of the case and the relevance of numerous
§ 3553(a) factors throughout the sentencing hearing. At different parts of the hearing, the District
Court focused on the history and characteristics of the defendant, the nature and characteristics of
the offense, and the applicable Sentencing Guidelines range. As such, “we will not conclude that a
district judge shirked [his] obligation to consider the § 3553(a) factors simply because [he] did not
discuss each one individually or did not expressly parse or address every argument relating to those
factors that the defendant advanced.” Id. at 30.




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         ii.   “Substantive Reasonableness”

         Similarly, there is no merit to defendant’s claim of substantive unreasonableness.
Considering the totality of the circumstances and the longstanding nature of the defendant’s criminal
activity, we cannot conclude that his sentence constitutes a “manifest injustice,” “shock[s] the
conscience,” or is in any other way substantively unreasonable. United States v. Rigas, 583 F.3d 108,
122-23 (2d Cir. 2009) (internal quotation marks omitted); see Park, 758 F.3d at 199-202 (describing
“substantive unreasonableness”). The District Court’s 72-month sentence —which is well within the
calculated Guidelines range of 42 to 96 months—is plainly reasonable.

                                         CONCLUSION

        We have considered all of appellant’s arguments and find them to be without merit.
Accordingly, with the exception of appellant’s ineffective assistance of counsel claim, which we
decline to review on direct appeal, we AFFIRM the judgment of the District Court.


                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




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