09-3524-cr(L)
United States v. Shoreline Motors


                                    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 14th day
of January, two thousand eleven.

Present:    AMALYA L. KEARSE,
            RALPH K. WINTER,
            PETER W. HALL,
                              Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                   Appellee,
                                                            Nos.    09-3524-cr (L)
                             v.                                     09-3531-cr(Con)
                                                                    09-5064-cr(Con)

SHORELINE MOTORS, ANGEL HERNANDEZ, BRUCE
VETRE, JAMES CLANTON, JOSE CONCEPCION,
RICHARD DOMINGUEZ, DARIEL PEREZ TORRES,
MICHAEL RIVERA,

                   Defendants,

RICHARD BROWN, NELSON DATIL, DAVID BROWN,

                   Defendants-Appellants.

________________________________________________
For Richard Brown:              MICHAEL S. HILLIS, Dombroski Hillis, LLC, New Haven,
                                Connecticut.

For Nelson Datil:               JONATHAN J. EINHORN , New Haven, Connecticut.

For David Brown:                ROBERT C. MIRTO , Law Offices of Mirto & Rasile, LLC, West
                                Haven, Connecticut.

For the United States:  MICHAEL S. MCGARRY , Assistant United States Attorney
                        (Elizabeth A. Latif, Assistant United States Attorney, of counsel),
                        for David B. Fein, United States Attorney, District of Connecticut.
________________________________________________


        Appeal from the United States District Court for the District of Connecticut (Burns, J.).

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

DECREED that the judgments of the District Court be and hereby are AFFIRMED.

        Defendants-appellants Richard Brown, Nelson Datil, and David Brown appeal from

judgments entered by the district court (Burns, J.) after a jury trial, convicting all three

defendants on one count of conspiracy to commit mail fraud and wire fraud in violation of 18

U.S.C. § 371; convicting each defendant on various counts of wire fraud in violation of 18

U.S.C. §§ 1343, 2(a), and 2(b) (David Brown on six counts, Richard Brown on one count, and

Datil on four counts); and convicting Richard Brown and Datil each on one count of mail fraud

in violation of 18 U.S.C. §§ 1341, 2(a), and (2)(b). The charges arose from an automobile-

financing fraud scheme carried out at Shoreline Motors Corporation (“Shoreline”), a Mitsubishi

car dealership in Branford, Connecticut, at which the defendants were employed. David Brown

and Datil challenge their convictions, and Richard Brown challenges his sentence. We assume

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



                                                  -2-
       I.      Nelson Datil

       Datil’s sole argument on appeal is that, on rebuttal, the prosecutor impermissibly shifted

the burden of proof to him by arguing to the jury that Datil’s attorney, during his own rebuttal

summation, had not contended that handwriting on certain fraudulent loan application forms was

not Datil’s. The prosecutor stated during the Government’s summation:

       Now, you saw the documents that [the other prosecutor] put in front of you that show
       that it appears as Mr. Datil’s handwriting. And [Datil’s counsel] did not deny that
       it was his handwriting; he simply said [a customer’s grandmother] didn’t say she saw
       it, or that [the customer] didn’t say she saw him write it. Well, he could have written
       it at the dealership before he drove up to Hartford.

Tr. of Trial Day 15 at 246. Following the completion of that summation, Datil moved for a

mistrial on the ground that the quoted comment violated his rights under the Fifth Amendment.

We see no error in the court's denial of the motion.

       An accused has a Fifth Amendment right to remain silent during his criminal trial, and the

prosecution cannot comment on that silence, see, e.g., Griffin v. California, 380 U.S. 609, 615

(1965), or on his failure to present a defense, see, e.g., United States v. Parker, 903 F.2d 91, 98-

99 (2d Cir. 1990); United States v. Walker, 835 F.2d 983, 988 (2d Cir. 1987). Remarks of the

prosecutor in summation, however, do not amount to a denial of due process unless they

constitute "egregious misconduct." Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). In

order to obtain reversal of a conviction on the ground that the prosecutor has crossed the

boundary between permissible and impermissible argument, the defendant must also show that

the improper argument caused him substantial prejudice. See, e.g., United States v. LaMorte,

950 F.2d 80, 83 (2d Cir. 1991).




                                                 -3-
        In assessing whether the comment complained of meets this test, we consider "the

severity of the misconduct, the measures adopted to cure it, and the certainty of conviction in the

absence of the misconduct." United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995); see,

e.g., United States v. Millar, 79 F.3d 338, 343 (2d Cir. 1996); United States v. Rivera, 22 F.3d

430, 437 (2d Cir. 1994). Even where a prosecutor's argument was clearly impermissible, we

have been reluctant to reverse where the transgression was isolated, the trial court took swift and

clear steps to correct the implication of the argument, and the evidence against the defendant was

strong. See, e.g., United States v. Shareef, 190 F.3d 71, 79 (2d Cir. 1999); United States v. Cruz,

797 F.2d 90, 93 n.1 (2d Cir. 1986) (in light of the record, the argument as a whole, and the

curative instructions, prosecutor's statement that "[t]he defense . . . has to convince you,"

although improper, was held not to require reversal (internal quotation marks omitted)).

        In the present case, the trial judge, after hearing Datil's motion for a mistrial, sent the jury

home, took the matter under advisement, and addressed the matter at the start of court the next

day. The court denied Datil's motion but gave the jury a curative instruction stating:

        Ladies and gentlemen of the jury, as you heard in my initial remarks to you and as
        you will again hear in my charge to you, during the course of my charge, I will
        remind you that in a criminal case, the Defendant has no burden to produce or to
        explain away any evidence. To the extent that the argument of government counsel
        called upon any defendant to explain away any evidence, such argument was
        improper, illegal, and should be ignored by you.

The court reiterated such an instruction in its final jury charge, stating that

        [i]n a criminal case, the burden is at all times upon the Government to prove guilt
        beyond a reasonable doubt. . . . This burden never shifts to the Defendant . . . .

        Defense counsel does not have any obligation to deny or refute any aspect of the
        Government's case. Nor does the Defendant himself have any burden to deny the
        Government's arguments or proof, or to produce any evidence whatsoever.


                                                  -4-
        Therefore, you may not conclude that the Defendant has conceded a point because
        his counsel did not address it.

        The prosecutor's inappropriate comment that Datil's counsel did not deny the handwriting

was that of Datil was but a single sentence in the rebuttal summation. Our review of the record

persuades us that the evidence against Datil was sufficiently strong that the trial court's excellent

curative instructions were ample to prevent any denial of due process.

        II.     David Brown

        David Brown raises three challenges to his conviction. First, he argues that the evidence

was insufficient to support his conviction on any count. Second, he contends that the district

court erred in charging the jury on conscious avoidance. Third, he argues that the district court

should have permitted him to call a witness to impeach a key Government witness. We take

these issues in turn.

        i.      Sufficiency of the evidence

        An appellant arguing that there was insufficient evidence to support a conviction bears “a

very heavy burden.” United States v. Crowley, 318 F.3d 401, 407 (2d Cir. 2003) (internal

quotation marks omitted). “[T]he evidence must be viewed in the light most favorable to the

Government, with all reasonable inferences drawn in favor of the verdict.” Id. To prove

conspiracy in violation of § 371, the Government must show that (1) an agreement exists

between two or more persons to commit an unlawful act; (2) the defendants knowingly engaged

in the conspiracy intending to commit those offenses that were the objects of the conspiracy; and

(3) one or more of the members of the conspiracy committed an “overt act” in furtherance of the

conspiracy. United States v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002). To prove mail fraud or wire



                                                 -5-
fraud, the Government must show (1) a scheme to defraud, (2) to obtain money or property, that

is (3) furthered by the use of interstate mail or wires. United States v. Autuori, 212 F.3d 105, 115

(2d Cir. 2000). One who "aids, abets, counsels, commands, induces or procures" the commission

of a wire-fraud offense, or "willfully causes" such an offense, may be punished as a principal. 21

U.S.C. §§ 2(a), 2(b).

       The evidence against David Brown was considerable. Two witnesses testified that he

was present at Saturday sales meetings where employees openly discussed a scheme to falsify the

income and employment data of potential customers so that Mitsubishi’s financing arm,

Mitsubishi Motors Credit of America (“MMCA”), would extend credit to individuals it would

not have found credit-worthy if given accurate information. Customers who purchased cars

through David Brown included, inter alia: (1) Wesley Witcher, who stated that although he had

told David Brown that his mother was unemployed, the application sent to MMCA stated that

Witcher’s mother was working for Pratt & Whitney and earning $41,000 per year; he also stated

that his own income was listed as $7,000 greater than he had informed David Brown it was; and

(2) Andrea Williams, who testified that her income was falsely stated on both her own credit

application and one on which she appeared as cosigner. David Brown’s customers also testified

that he failed to disclose balloon payments and included hidden charges for CD changers and

other features, some of which were not provided on the cars.

       Bruce Vetre, a cooperating witness and co-conspirator, testified that David Brown

instructed him to write down false incomes for customers to show amounts sufficient to qualify

for loans. Vetre testified that David Brown told him to write in false employment information

for cosigner Marie Bozzuto, and that David Brown sat next to Vetre as Vetre used online


                                                -6-
software to send false information to MMCA. Vetre also stated that with respect to Andrea

Williams’s transaction, David Brown was aware that falsified postal money orders were used to

create the appearance that Shoreline had paid off a loan for Williams’s old car so that she could

qualify for new financing. Furthermore, Vetre testified that David Brown would often leave the

income line blank on credit applications so that Vetre could later insert the necessary amount of

income.

       David Brown’s arguments with respect to the sufficiency of the evidence are mostly akin

to summation, pointing to minor alleged inconsistencies in the witnesses’ testimony and asking

us to substitute our evaluation of their credibility for the jury’s. This we may not do. See United

States v. James, 239 F.3d 120, 124 (2d Cir. 2000); see also United States v. Florez, 447 F.3d 145,

156 (2d Cir. 2006) (we will not “second-guess a jury’s credibility determination on a sufficiency

challenge,” especially where the defendant “simply repeats facts and arguments already presented

to the jury”). Drawing all inferences in the Government’s favor, there is ample evidence that

David Brown conspired with other Shoreline employees. In addition to the evidence already

mentioned, Vetre testified that David Brown was present at a Saturday meeting where the

scheme was discussed, and this testimony was corroborated by Jose Concepcion, who stated that

all salesmen were present at that meeting. Similarly, Vetre stated that on at least one occasion

David Brown specifically instructed him to fill in a figure that would satisfy MMCA’s

creditworthiness standards. This evidence is sufficient to sustain a conviction on the conspiracy

count. With respect to the substantive counts, David Brown’s repeated implication that the

Government was required to introduce specific evidence showing that David Brown personally

prepared each or any fraudulent credit application is without merit. Further, David Brown was


                                                -7-
charged with aiding and abetting and causing mail and wire frauds, see 18 U.S.C. §§ 2(a) and

(2)(b), and the evidence discussed above easily permitted the jury to find that he had caused and

assisted in such criminal conduct. The evidence allowed the jury to infer that even if David

Brown did not personally falsify information in any given sale, he knew from his participation in

the Saturday sales meetings that other Shoreline employees would do so, literally filling in the

blanks.

          ii.    Conscious avoidance

          “We review jury instructions de novo, and reverse only when the charge, viewed as a

whole, constitutes prejudicial error.” United States v. Amato, 540 F.3d 153, 164 (2d Cir. 2008).

A conscious avoidance charge is appropriate when “(a) the element of knowledge is in dispute,

and (b) the evidence would permit a rational juror to conclude beyond a reasonable doubt ‘that

the defendant was aware of a high probability of the fact in dispute and consciously avoided

confirming that fact.’” United States v. Hopkins, 53 F.3d 533, 542 (2d Cir. 1995) (quoting

United States v. Rodriguez, 983 F.2d 455, 458 (2d Cir. 1993)).

          In his opening statement, David Brown’s counsel argued that the Shoreline scheme may

have existed, but that the question before the jury was whether David Brown was involved. In

his closing statement, he argued that it was the finance department at Shoreline, not David

Brown, a salesman, who committed the fraud. In its jury charge, the district court stated that the

Government was required to prove that David Brown “participated in the scheme to defraud

knowingly, willfully and with specific intent to defraud.” The district court added:

          The Government can also meet [its] burden . . . [of] showing that the Defendant had
          knowledge of the falsity of his statements if it in fact showed beyond a reasonable
          doubt that he acted with deliberate disregard of whether the witness[e]s[’] statements


                                                   -8-
       were true or false, or with a conscious purpose to avoid learning the truth. If the
       Government establishes that the Defendant acted with deliberate disregard for the
       truth, the knowledge requirement would be satisfied unless the Defendant actually
       believed his statements to be true. This guilty knowledge, however, cannot be
       established by demonstrating that the Defendant was merely negligent or foolish.

Tr. of Jury Charge at 75-76.

       We conclude, first, that the use of a conscious avoidance charge was appropriate. It was

David Brown’s counsel who put the element of knowledge in dispute by suggesting that he was

unaware of any financing scheme. Furthermore, a rational juror could conclude that David

Brown was aware of a high probability that the scheme existed, given, inter alia, his presence at

the Saturday sales meetings and his frequent practice of leaving income information lines blank

on credit applications even after customers gave him accurate information.

       Second, we conclude that the instruction, although not optimal, was sufficient. In a letter

submitted pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure, David Brown calls

our attention to our recent decision in United States v. Kaiser, 609 F.3d 556 (2d Cir. 2010). In

Kaiser, we re-emphasized that “a conscious avoidance charge must communicate two points: (1)

that a jury may infer knowledge of the existence of a particular fact if the defendant is aware of a

high probability of its existence, (2) unless the defendant actually believes that it does not exist.”

609 F.3d at 565-66 (internal quotation marks omitted).

       We detect no Kaiser error here. As quoted above, the district court’s charge expressly

reminded the jury that the knowledge requirement cannot be satisfied if the defendant actually

believes in the truth of his statements. And although the district court did not use the “high

probability” language we strongly recommended in Kaiser, that language carries no “talismanic

weight.” Id. at 566 (internal quotation marks omitted). Here, the district court made clear that


                                                 -9-
mere negligence is insufficient to find conscious avoidance, and our concern in Kaiser was that

“there [was] some risk that the jury could have convicted if it concluded that Kaiser was merely

negligent.” Id. Although the district court’s charge in this case differed from the language we

strongly encouraged in Kaiser — and we strongly recommend that prosecutors request and

district courts employ the Kaiser language in the future — on the facts of this case we conclude

that any deficiency in the charge did not amount to prejudicial error.

       David Brown’s reply brief suggests the possibility that he misunderstands our cautionary

statement that “‘[a]n instruction that the jury cannot find knowledge on the basis of mistake or

accident is not an acceptable substitute for the balancing charge which incorporates the concept

of actual belief.’” Id. (quoting United States v. Sicignano, 78 F.3d 69, 72 (2d Cir. 1996)). That

warning does not mean that the “high probability” language must be used verbatim, nor does it

mean that cautioning the jury against mere negligence cannot serve to communicate the

requirement of “high probability.” Rather, it means that explaining the high-probability

requirement is no substitute for a separate explanation that a defendant’s actual belief of facts

contrary to those allegedly consciously avoided absolves the defendant of responsibility. Id.

(district court’s charge “contained nothing to suggest that actual belief would absolve Kaiser of

culpability”). The district court’s charge in this case did not commit that mistake, because it did

expressly state that actual belief of a contrary proposition (in this case, an affirmative belief on

David Brown’s part that there was no scheme to defraud at Shoreline) would prevent a finding of

conscious avoidance. The central purpose of a conscious avoidance charge, after all, is to hold




                                                 -10-
those accountable who willfully blind themselves to the wrongful purpose of underlying acts that

may be innocent absent that purpose.1

       iii.    The preclusion of James Jarmon’s testimony

       On direct examination, Vetre admitted that, in addition to participating in the fraud, he

had submitted a false credit application to lease a Lexus for his own personal use. On cross-

examination, the following exchange took place:

       [David Brown's counsel]: Was there a time when you wanted to get rid of that
       vehicle?
       [Vetre]: Yes.
       [David Brown's counsel]: Did you speak to anyone about having it brought to a chop
       shop?
       [Vetre]: No.

Later, David Brown’s counsel sought to call James Jarmon, a former Shoreline salesman, to

testify that Vetre had asked people in the dealership whether someone could arrange for Vetre’s

leased Lexus to be stolen and taken to a chop shop in the Bronx. The Government moved in

limine to preclude Jarmon’s testimony pursuant to Rule 608(b) of the Federal Rules of Evidence2

as extrinsic evidence on a collateral matter. The district court granted the Government’s motion

and precluded the testimony.



       1
           We made this distinction clear in Kaiser, in which the district gave a clarifying
instruction stating that “‘mere presence or mere acquaintance with conspirators’ was insufficient,
and that conscious avoidance pertained only to ‘the objects of the conspiracy or the substantive
crime.’” 609 F.3d at 565.
         2
           “Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness, other than conviction of crime as provided in
Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning
the character for truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.”

                                               -11-
       We review for abuse of discretion a district court’s decision to preclude evidence offered

to impeach a witness. See United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010). We

discern no abuse of discretion in the district court’s application of Rule 608(b), which prohibits

the use of extrinsic evidence of specific instances to attack a witness’ character for truthfulness.

In his brief, David Brown admits that his purpose in introducing Jarmon’s testimony would have

been to impeach Vetre. Although David Brown argues that the court’s ruling allowed Vetre to

“perjure himself without any consequences,” D. Brown Br. at 28, we have recognized that cross-

examination is generally the proper mechanism by which to test an adverse witness’s credibility,

and the use of extrinsic evidence to further pursue questions posed on cross-examination is

generally not permitted. See United States v. Masino, 275 F.2d 129, 133 (2d Cir. 1960) ("When

a witness is cross-examined for the purpose of destroying his credibility by proof of specific acts

of misconduct not the subject of a conviction, the examiner must be content with the answer.

The examiner may not, over objection, produce independent proof to show the falsity of such an

answer."); see also United States v. Castillo, 181 F.3d 1129, 1133 (9th Cir. 1999).

       Even if, in an appropriate case, we ought to allow cross-examination testimony to be

impeached by extrinsic contradiction, it is unnecessary to announce any such rule today, because

any error was harmless. “Error is harmless if it is highly probable that it did not contribute to the

verdict.” United States v. Gomez, 617 F.3d 88, 95 (2d Cir. 2010) (internal quotation marks

omitted). Any impeachment of Vetre based on Jarmon’s testimony would have been of very

minor significance, given that Vetre had already admitted to participating in the Shoreline fraud

and to fraudulently leasing the Lexus in the first place. We think it is highly probable that the

jury’s verdict would have been unchanged by Jarmon’s testimony.


                                                -12-
       Finding no merit in any of David Brown’s arguments, we affirm his conviction.

       III.    Richard Brown

       We review sentences for reasonableness, which is “akin to review for abuse of

discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Reasonableness has

both procedural and substantive components. See United States v. Avello-Alvarez, 430 F.3d 543,

545 (2d Cir. 2005). A district court commits procedural error if it fails to calculate the

Guidelines range (unless omission of the calculation is justified), errs in its Guidelines

calculation, treats the Guidelines as mandatory, does not consider the factors set forth in 18

U.S.C. § 3553(a), rests its sentence on a clearly erroneous factual determination, or fails to

adequately explain its chosen sentence (including any deviation from the Guidelines range). See

United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). In reviewing sentences for

substantive reasonableness, we apply a “deferential abuse-of-discretion standard,” and will set

aside the district court’s sentence “only in exceptional cases where [its] decision cannot be

located within the range of permissible decisions.” Id. at 189 (internal quotation marks omitted).

       The district court sentenced Richard Brown principally to 60 months, well below the

bottom of the 92 to 115 months recommended by the Guidelines. Richard Brown argues that:

(1) the district court failed to address his argument that he had a minor role in the offense; (2) it

failed to adequately analyze the 18 U.S.C. § 3553(a) factors; and (3) it failed to consider the

disparities between his sentence and that of his co-defendants. We find none of these contentions

persuasive.

       First, the transcript of the sentencing hearing reflects that the district court considered,

and rejected, Richard Brown’s assertion that his role in the offense was minor. After listening to


                                                 -13-
a presentation by counsel about offense role, the district court observed that the record indicated

that, in at least one instance, Richard Brown had personally filed a false credit application, and

asked the defense to respond. The defense’s only response was a blunt denial of responsibility by

Richard Brown himself, which the district court understandably did not find persuasive. We thus

reject the suggestion that the district court failed to address the defense’s arguments regarding

role.

        We also disagree with Richard Brown’s contention that the district court failed to give

adequate attention to the 18 U.S.C. § 3553(a) factors or provided insufficient reasoning for its

sentence. A district court need not “expressly parse or address every argument relating to those

factors that the defendant advanced,” and we entertain “a strong presumption that the sentencing

judge has considered all arguments properly presented to her, unless the record clearly suggests

otherwise.” Fernandez, 443 F.3d at 29-30. No “robotic incantation” is needed to prove that

consideration of all of the § 3553(a) factors occurred. Id. at 30 (quoting United States v. Crosby,

397 F.3d 103, 113 (2d Cir. 2005)).

        The district court noted that the Guidelines range for Richard Brown was “largely driven

. . . by Mr. Brown’s criminal history.” Tr. of R. Brown Sent. at 28. The court nevertheless

imposed a below-Guidelines sentence of 60 months and stated that the sentence was based on

“the trial that I sat through, my knowledge of the case, and Mr. Brown’s participation in this

conspiracy.” Id. It is distinctly the role of the district court to determine what weight is to be

afforded to each § 3553(a) factor, and we consider only “whether a factor relied on by a

sentencing court can bear the weight assigned to it.” Cavera, 550 F.3d at 191. The district

court’s statements at sentencing demonstrate that it considered Richard Brown’s lengthy criminal


                                                 -14-
history and recidivism as especially significant factors in fashioning an appropriate sentence.

Especially given the substantially below-Guidelines sentence imposed, we cannot see any basis

for stating that the district court attached undue weight to this particular factor.

        For much the same reasons, we do not agree that the district court failed to consider “the

need to avoid unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Richard Brown’s co-defendants

were in lower Criminal History Categories — Category III in the case of Datil,3 and Category II

in the case of David Brown. Richard Brown also complains that he received the same sentence

as another co-defendant, Angel Hernandez, despite Hernandez’s conviction additional counts and

significantly greater role in the offenses. But Hernandez’s criminal history was Category I, in

contrast to Richard Brown’s Category V. The district court, again, made clear that Richard

Brown’s persistent recidivism was the predominant factor at his sentencing. There is accordingly

no basis for us to conclude that any sentence disparity was unwarranted. See Fernandez, 443

F.3d at 28 (“[A] disparity between non-similarly situated co-defendants is not a valid basis for a

claim of error under 18 U.S.C. § 3553(a)(6).”) (emphasis in original). We thus affirm Richard

Brown’s sentence.




        3
         The district court sentenced Datil to a single day in prison (plus three years of
supervised release, with the first six months to be served in a halfway house), but did so in part
because, in findings that were almost exactly the opposite of its findings regarding the lack of
deterrent effect that Richard Brown's prior convictions had on Brown, it concluded that Datil
“has been sufficiently shocked and disturbed by this prosecution, to be deterred from any further
conduct of that kind.” Tr. of Datil Sent. at 52.

                                                 -15-
       IV.    Conclusion

       We have considered all of the appellants’ other arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court with respect to each

appellant.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




                                             -16-
