     14-1519-cr
     United States v. Lopez

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of April, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DENNY CHIN,
 8                              Circuit Judges,
 9
10                    ELIZABETH A. WOLFORD,
11                                  District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       UNITED STATES OF AMERICA,
15                Appellee,
16
17                    -v.-                                               14-1519-cr
18
19       EFRAIN LOPEZ,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        COLLEEN P. CASSIDY, Federal
24                                             Defenders of New York, Inc.,



                *
               Judge Elizabeth A. Wolford, of the United States
         District Court for the Western District of New York, sitting
         by designation.
 1                              Appeals Bureau, New York, New
 2                              York.
 3
 4   FOR APPELLEE:              KARL METZNER, Assistant United
 5                              States Attorney (with Ilan
 6                              Graff, Assistant United States
 7                              Attorney, on the brief), for
 8                              Preet Bharara, United States
 9                              Attorney for the Southern
10                              District of New York, New York,
11                              New York.
12
13        Appeal from a judgment of the United States District
14   Court for the Southern District of New York (Seibel, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of conviction of the district
18   court be AFFIRMED.
19
20        Defendant-appellant Efrain Lopez appeals the sentence
21   imposed by the United States District Court for the Southern
22   District of New York (Seibel, J.). He was sentenced to 48
23   months in prison, followed by three years’ supervised
24   release. We assume the parties’ familiarity with the
25   underlying facts, the procedural history, and the issues
26   presented for review.
27
28        Lopez argues that the district court committed
29   procedural error by failing to provide notice of its intent
30   to impose a sentence in excess of the Guidelines, and that
31   the sentence imposed is substantively unreasonable. Review
32   of a district court’s sentencing falls “under a deferential
33   abuse-of-discretion standard,” Gall v. United States, 552
34   U.S. 38, 41 (2007), and encompasses both procedural and
35   substantive components, United States v. Bonilla, 618 F.3d
36   102, 108 (2d Cir. 2010). “Substantive reasonableness review
37   can take place any time following procedural reasonableness
38   review.” Bonilla, 618 F.3d at 109. If satisfied that the
39   sentence is procedurally proper, this Court reviews
40   substantive reasonableness of an above-Guidelines sentence
41   by examining “the reasons given by the district court.”
42   United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013).
43   Generally, however, “if the ultimate sentence is reasonable
44   and the sentencing judge did not commit procedural error in

                                  2
 1   imposing that sentence, we will not second guess the weight
 2   (or lack thereof) that the judge accorded to a given factor
 3   or to a specific argument made pursuant to that factor.”
 4   United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009)
 5   (internal quotation marks and alterations omitted).
 6
 7        As to procedural error, Lopez argues that the district
 8   court erred by failing to give notice before making an
 9   upward departure, a requirement under Federal Rule of
10   Criminal Procedure 32(h). This notice requirement does not
11   extend to the other mechanism for adjusting sentences:
12   variances. Irizarry v. United States, 553 U.S. 708, 714
13   (2008). Despite the court’s use of language typically used
14   to describe a departure, the sentence imposed amounted to a
15   variance from the Guidelines because the district court
16   relied on its power under 18 U.S.C. § 3553(a). See United
17   States v. Keller, 539 F.3d 97, 100 (2d Cir. 2008) (“We see
18   no error whatsoever in the District Court’s use of the
19   framework and terminology of the Guidelines in the course of
20   exercising its variance discretion.”). Accordingly, we find
21   no procedural error.
22
23        As to substantive reasonableness, Lopez argues that,
24   (1) the district court’s policy disagreement with the
25   firearm sentencing Guidelines improperly weighed as a major
26   justification for the sentence, and (2) his convictions for
27   remote conduct, which were excluded from the Criminal
28   History Category calculation, improperly resulted in an
29   increased sentence. Neither argument is persuasive.
30
31        First, Lopez’s contention that the district court’s
32   policy disagreement with the firearm sentencing Guidelines
33   served as a major justification is an overstatement. The
34   district court briefly mentioned its disagreement after a
35   lengthy explanation justifying the above-Guidelines sentence
36   on other grounds. At any rate, a district court may adjust
37   a sentence, “based solely on policy considerations,
38   including disagreements with the Guidelines.” United States
39   v. Dhafir, 577 F.3d 411, 414 (2d Cir. 2009); see also
40   Kimbrough v. United States, 552 U.S. 85, 101 (2007) (“[A]s a
41   general matter, courts may vary from the Guidelines ranges
42   solely on policy considerations, including disagreements
43   with the Guidelines.” (internal quotation marks and
44   alterations omitted)).

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 1        Second, Lopez’s remote convictions were not a basis for
 2   the above-Guidelines sentence. The district court
 3   identified a number of § 3553(a) factors as justifications
 4   for the sentence imposed. Of particular importance, the
 5   district court considered that the defendant’s recent
 6   convictions were violent. These findings, coupled with the
 7   current charges for possession of a modified firearm, served
 8   as the district court’s basis for the sentence, which we
 9   conclude was substantively reasonable.
10
11        For the foregoing reasons, and finding no merit in
12   Lopez’s other arguments, we hereby AFFIRM the judgment of
13   the district court.
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17




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