08-6228-cr
USA v. Sappleton

                           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 United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 11th day of February, two thousand ten.

Present: GUIDO CALABRESI,
         ROBERT A. KATZMANN,
                           Circuit Judges,
         DENNY CHIN,
                           District Judge.*
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                           No. 08-6228-cr

OWEN SAPPLETON,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         DARRELL B. FIELDS, Federal Defenders of New
                                                 York, New York, N.Y.

For Appellee:                                    AMIE ELY , Assistant United States Attorney
                                                 (Katherine Polk Failla, Assistant United States
                                                 Attorney, on the brief), for Preet Bharara,
                                                 United States Attorney for the Southern District
                                                 of New York, New York, N.Y.


       *
       The Honorable Denny Chin, United States District Judge for the Southern District of
New York, sitting by designation.
       Appeal from the United States District Court for the Southern District of New York
(Preska, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Owen Sappleton appeals from a December 17, 2008 judgment of the

United States District Court for the Southern District of New York (Preska, J.), sentencing

Sappleton principally to 57 months’ imprisonment, following his entry of a guilty plea, for illegal

reentry into the United States after having been deported following a conviction of an aggravated

felony in violation of 8 U.S.C. § 1326(a) and (b)(2). We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

       The sole issue raised in this appeal is whether the district court’s sentence of 57 months’

imprisonment was unreasonable. We review the district court’s sentence for reasonableness,

“which is akin to review under an abuse-of-discretion standard.” United States v. Reyes, 557

F.3d 84, 87 (2d Cir. 2009) (per curiam). Our review is both procedural and substantive. See

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). With respect to procedure,

we examine whether “the sentence resulted from the district court’s considered judgment as to

what was necessary to address the various, often conflicting, purposes of sentencing.” Id. at 189-

90. With respect to substantive reasonableness, 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 advantage of district courts.” Id. “Our role is no more than to ‘patrol

the boundaries of reasonableness,’” United States v. Stewart, 06-5015-cr (L), 2009 U.S. App.

LEXIS 28595, at *113 (2d Cir. Dec. 23, 2009) (quoting Cavera, 550 F.3d at 191), and we

generally “will not substitute our own judgment for the district court’s on the question of what is

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sufficient to meet the § 3553(a) considerations in any particular case. We will instead 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.’” Cavera, 550 F.3d at 189

(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)) (citation and emphasis

omitted).

       Here, Sappleton does not argue — nor do we find — that the district court’s sentence was

procedurally unreasonable. Instead, Sappleton argues only that the sentence was substantively

unreasonable given his troubled childhood, his relationship with his fiancee and her children, his

purportedly minimal criminal record over the past 20 years, the alleged unlikelihood of

recidivism, and alleged disparities between the illegal reentry Guidelines range and the ranges for

other, purportedly more serious crimes. We disagree, and conclude that the district court did not

abuse its discretion in imposing a sentence of 57 months’ imprisonment, a sentence below the

Guidelines range set forth in Sappleton’s PSR, and at the bottom of the range set forth in the

government’s Pimentel letter.

       Specifically, the record makes clear that the district court carefully took into account

Sappleton’s personal circumstances when fashioning its sentence, and balanced those concerns

against other factors, including the seriousness of Sappleton’s criminal history, the need for

deterrence, and the need to protect the public. It was not unreasonable for the district court to do

so. United States v. Jones, 460 F.3d 191, 195 (2d Cir. 2006) (noting that the sentencing court is

not precluded from considering its “own sense of what is a fair and just sentence under all of the

circumstances”). Although Sappleton notes that his most recent crimes — other than the instant

offense — were misdemeanor marijuana offenses, the district court took that concern into

account when it granted Sappleton a downward departure as to his Criminal History Category.

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       Moreover, although Sappleton argues that the district court’s sentence failed to

adequately reflect his age and correspondingly low risk of recidivism, Sappleton did not raise this

argument below, and we thus review this objection for plain error. See United States v. Carter,

489 F.3d 528, 537 (2d Cir. 2007). Given that Sappleton committed four narcotics offenses after

illegally reentering the country, with the most recent offense occurring less than one month

before his arraignment in this action, we cannot conclude that the district court committed plain

error when it declined to reduce Sappleton’s sentence based on an alleged unlikelihood of

recidivism. Likewise, although Sappleton argues that his sentence should have been lower in

light of alleged disparities between the illegal reentry Guidelines range and the ranges for certain

other crimes, in the circumstances of this case we see no error in the district court’s sentence.

       In short, given Sappleton’s criminal history, the need for deterrence, the need to protect

the public from further crimes, and the other factors enumerated in section 3553(a), this case

does not present one of the “exceptional cases” where the district court’s decision “cannot be

located within the range of permissible decisions.” Rigas, 490 F.3d at 238.

        We have considered Sappleton’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O'HAGAN WOLFE, CLERK




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