08-5935-cr
United States v. Orozco Mendez


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUM M ARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY
ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 30th day of March, two thousand ten.

PRESENT:         REENA RAGGI,
                 RICHARD C. WESLEY,
                 PETER W. HALL,
                                 Circuit Judges.

_______________________________________________________

UNITED STATES OF AMERICA,
                                               Appellee,

                       v.                                                   No. 08-5935-cr
                                                                            NAC
DIEGO FERNANDO OROZCO MENDEZ, a/k/a El Doctor,
                                    Defendant-Appellant.
________________________________________________________

For Appellant:                   KEVIN M. SCHAD , Schad & Schad, Lebanon, Ohio.

For Appellee:                    PREET BHARARA , United States Attorney, Virginia Chavez
                                 Romano and Katherine Polk Failla, Assistant United States
                                 Attorneys, Southern District of New York.

         Appeal from a judgment of the United States District Court for the Southern District of
New York (Lynch, J.), following the defendant’s guilty plea. UPON DUE CONSIDERATION,
it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court
is AFFIRMED.
        Defendant-appellant Diego Fernando Orozco Mendez appeals from a judgment of the
United States District Court for the Southern District of New York (Lynch, J.), following his
guilty plea. The district court sentenced Orozco principally to a 108-month term of
imprisonment. We assume the parties’ familiarity with the factual and procedural history of the
case, as well as the issues on appeal.

        Orozco challenges his sentence only, and he raises three contentions: (1) that he should
have received a minor role reduction pursuant to U.S.S.G. § 3B1.2(b); (2) that the district court
did not understand its authority to disagree with the Sentencing Guidelines for policy reasons;
and (3) that the 108-month term of imprisonment imposed by the district court was substantively
unreasonable. We find each of these contentions unpersuasive.

I.      Minor Role Reduction

        “It is the defendant’s burden to establish by a preponderance of the evidence that his level
of culpability entitles him to a minor role reduction.” United States v. Garcia, 920 F.2d 153, 156
(2d Cir. 1990) (per curiam). A minor role reduction “‘will not be available simply because the
defendant played a lesser role than his co-conspirators; to be eligible for a reduction, the
defendant’s conduct must be ‘minor’ ... as compared to the average participant in such a crime.’”
United States v. Carpenter, 252 F.3d 230, 235 (2d Cir. 2001) (quoting United States v. Rahman,
189 F.3d 88, 159 (2d Cir. 1999) (per curiam)). Where, as here, our review of the district court’s
application of the Guidelines calls upon us primarily to evaluate the district court’s decision not
to apply a role adjustment given “case-specific detailed factual circumstances,” United States v.
Vasquez, 389 F.3d 65, 74-75 (2d Cir. 2004), we will review the district court’s decision for clear
error, see United States v. Gotti, 459 F.3d 296, 349-50 (2d Cir. 2006).

        We find no clear error in the district court’s decision not to apply a minor role reduction.
The district court enumerated the reasons for not granting the reduction: (1) Orozco was an
investor in two different heroin importation transactions, and, even assuming that he was a very
small investor, his role as an investor as opposed to a mere salaried employee “count[ed]
strongly” against a minor role reduction, Sent’g Tr. at 6; (2) although Orozco claimed to be a
mere messenger, he used his privileges as a criminal defense attorney in his native Colombia to
“make him[self] a special kind of messenger,” id.; and (3) Orozco accepted an interest in
narcotics shipments as payment for legal services, “a significantly corrupt act on the part of an
attorney,” id. at 16. The district court did not clearly err in declining to find, on these facts, that
Orozco’s conduct was minor “as compared to the average participant in such a crime.”
 Carpenter, 252 F.3d at 235. Orozco’s arguments for a minor role in his brief simply quarrel
with the district court’s factual determinations and provide no basis to question those
determinations.

II.     Procedural Reasonableness

       “[A] district court may vary from the Guidelines range based solely on a policy
disagreement with the Guidelines, even where that disagreement applies to a wide class of

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offenders or offenses.” United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc)
(citing Kimbrough v. United States, 552 U.S. 85, 108-09 (2007)). There is no merit to Orozco’s
claim that the district court did not understand its authority to vary from the Sentencing
Guidelines for policy reasons. Orozco bases this claim on a statement by the court that he takes
out of context:

       The narcotics laws of this country are harsh. They are more harsh than I would
       probably adopt as a matter of policy with respect to narcotics ... Despite whatever
       policy disagreement I might have with the level of penalties that we provide for these
       offenses, I, nevertheless, believe in most cases that the guideline recommendations
       should be followed.

Sent’g Tr. at 18. But Orozco ignores the next sentence in the district court’s explanation: “That
is because the factors that the law requires me to follow typically point in favor of the guideline
recommendation.” Id. Understood in context, the district court was explaining that while it
might question the Guidelines, it nevertheless found that its consideration of the 18 U.S.C. §
3553(a) factors – including the Guidelines themselves, see § 3553(a)(2)(A)(4) – led it in most
cases to find the appropriate sentence to be one that was within the Guidelines. We have held
that a single statement by a sentencing judge that, “standing alone, might be interpreted as a
misapprehension that a Guidelines sentence should presumptively be imposed ... [can]not
overcome the clear indication in the record that the Court was well aware of its authority to
impose a non-Guidelines sentence.” United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006).
We find no procedural unreasonableness.

III.   Substantive Reasonableness

         We review the substantive reasonableness of a sentence under an abuse-of-discretion
standard, and will “set aside a district court’s substantive determination only in exceptional cases
where the trial court’s decision cannot be located within the range of permissible decisions.”
United States v. Rigas, 583 F.3d 108, 121-22 (2d Cir. 2009); Cavera, 550 F.3d at 189. In
“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 (citing Rita v. United States, 551 U.S. 334,
354 (2007)). The district court’s factual findings are reviewed for clear error. United States v.
Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).

        We conclude that Orozco’s sentence is substantively reasonable. We reject his contention
that “although the court considered it a negative factor, [his] status as an attorney was in reality a
mitigating factor.” Appellant’s Br. at 15. When a lawyer uses his status and privileges as a
lawyer to facilitate a crime, it “compound[s] the gravity of h[is] crime.” United States v. Stewart,
590 F.3d 93, 150 (2d Cir. 2009). Moreover, under the totality of the circumstances, we think it
was reasonable for the district court to weigh one aggravating factor (Orozco’s abuse of his role
as a lawyer) against a different, mitigating factor (the harsh conditions Orozco experienced in a
Colombian jail while fighting extradition), and to conclude that these factors offset one another,

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resulting in neither a below-Guidelines sentence nor a sentence higher than the bottom of the
Guidelines range. We decline to say that the district court should have considered Orozco’s
status as an alien to be a mitigating factor, as he raises this point for the first time on appeal. We
reject Orozco’s claim that his allegedly limited role in the conspiracy should have resulted in a
lower sentence for the same reasons that we have already rejected his claim that he was entitled
to a formal role reduction.

        Finally, Orozco argues that his sentence was substantively unreasonable when compared
to co-defendants who received sentences of 63 months or less for roles he contends were greater,
such as brokering drug deals, transporting the heroin, or facilitating importation via employment
as a security guard at a Colombian airport. “While a district court must consider each § 3553(a)
factor in imposing a sentence, the weight given to any single factor ‘is a matter firmly committed
to the discretion of the sentencing judge and is beyond our review.’” United States v. Capanelli,
479 F.3d 163, 165 (2d Cir. 2007) (quoting Fernandez, 443 F.3d at 32). The district court gave
considerable attention at sentencing to § 3553(a)(6), “the need to avoid unwarranted sentencing
disparities,” and concluded on the facts of this case that Orozco’s role as a professional,
compared to the “[brute] labor” provided by “people who in many cases had few alternatives,
[who] didn’t have a profession [or ] an education,” meant that there was no violation of the
disparity principle. Sent’g Tr. at 22-23. However an individual judge might have weighed these
respective roles, we cannot call the district court’s view, or its resulting sentence, substantively
unreasonable.

       We have reviewed Orozco’s remaining arguments and find them to be without merit.

                                          CONCLUSION

       For the reasons stated above, the judgment of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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