13-4105-cr
United States v. Jaiman

                                   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
10th day of March, two thousand fifteen.

Present:
            GUIDO CALABRESI,
            PETER W. HALL,
                        Circuit Judges,
            JED S. RAKOFF,
                        District Judge.*
____________________________________________________

UNITED STATES OF AMERICA,

                             Appellee,

                    v.                                                                       13-4105-cr

FREDDIE JAIMAN, A.K.A. SEALED DEFENDANT 1,

                  Defendant–Appellant.
____________________________________________________

For Defendant-Appellant:              RICHARD B. LIND, Law Office of Richard B. Lind, New York, NY.

For Appellee:           RAHUL MUKHI and Brian A. Jacobs, Assistant United States
                        Attorneys, for Preet Bharara, United States Attorney for the
                        Southern District of New York.
____________________________________________________




*
    Hon. Jed S. Rakoff, United States District Court for the Southern District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Engelmayer, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Freddie Jaiman (“Jaiman”) appeals from a judgment of conviction and sentence

following his guilty plea to one count of being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). The sole issue on appeal is the substantive reasonableness of Jaiman’s

sentence. While on bail pending sentencing, Jaiman was arrested in connection with a shooting

in the Bronx. After a Fatico hearing, the district court imposed an above-Guidelines sentence of

44 months’ imprisonment followed by three years’ supervised release. United States v. Fatico,

603 F.2d 1053 (2d Cir. 1979). We assume the parties’ familiarity with the underlying facts and

procedural history.

       This Court reviews sentences for “reasonableness,” a concept that encompasses both

procedural and substantive review. United States v. Cavera, 550 F.3d 180, 187–89 (2d Cir. 2008)

(en banc). Substantive review examines the length of the sentence imposed, United States v.

Bonilla, 618 F.3d 102, 108–09 (2d Cir. 2010), under a “deferential abuse-of-discretion standard,”

Cavera, 550 F.3d at 189 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We take “into

account the totality of the circumstances, including the extent of any variance from the

Guidelines range.” Gall, 552 U.S. 38 at 51. We also “giv[e] due deference to the sentencing

judge’s exercise of discretion, bearing in mind the institutional advantages of district courts,” and

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

sufficient to meet the [18 U.S.C.] § 3553(a) considerations in any particular case.” Cavera, 550

F.3d at 189–90. This Court will “set aside a district court’s substantive determination only in



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exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” Id. at 189 (citation, internal quotation marks, and emphasis omitted). A

sentence falls outside the range of permissible decisions when, “although procedurally correct,

[affirming] would nonetheless damage the administration of justice because the sentence

imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

       Jaiman contends that his sentence is excessive, arguing that the district court did not give

sufficient weight to Section 3553(a)’s “parsimony clause.” We disagree. The record reflects that

the district court carefully considered a wide range of factors, including Jaiman’s substantial

criminal history and lenient sentencing in the past, the offense conduct having occurred while

Jaiman was on supervised release, the dangerous nature of the offense, Jaiman’s conduct while

on bail pending sentencing, his acceptance of responsibility for the offense, and his parental

obligations. Further, the court properly considered Jaiman’s “opportunistic” conduct as

established at the Fatico hearing, finding that Jaiman had breached the court’s trust. On careful

review of the record, we conclude that the district court imposed a sentence well within the range

of permissible decisions. Jaiman’s sentence is thus reasonable in light of the Section 3553(a)

factors, including the “parsimony clause.”

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

The judgment of the district court is AFFIRMED.



                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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