         10-1861-cr
         United States v. Warren


                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                        10-1861-cr
17
18       LARRY WARREN, also known as
19       “Dad4Real4u,”
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:            Darrell B. Fields, Federal Defenders of
24                                 New York, Inc., Appeals Bureau, New York,
25                                 New York.
26
27       FOR APPELLEE:             Brian A. Jacobs, Assistant United States
28                                 Attorney (Katherine Polk Failla,
29                                 Assistant United States Attorney, Of
 1                     Counsel), for Preet Bharara, United
 2                     States Attorney for the Southern District
 3                     of New York.
 4
 5        Appeal from a judgment of conviction in the United
 6   States District Court for the Southern District of New York
 7   (Sullivan, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Defendant-Appellant Larry Warren (“Warren”) appeals
14   from a May 11, 2010 judgment of the United States District
15   Court for the Southern District of New York (Sullivan, J.)
16   entered following a plea of guilty to using a facility and
17   means of interstate commerce to attempt to persuade, induce,
18   entice, and coerce individuals under 18 years of age to
19   engage in sexual activity, in violation of 18 U.S.C.
20   § 2422(b). The district court sentenced Warren principally
21   to 240 months’ imprisonment--five months above the U.S.
22   Sentencing Guidelines (“Guidelines”) range. Warren’s sole
23   challenge is to the substantive reasonableness of the
24   sentence. We assume the parties’ familiarity with the
25   underlying facts, the procedural history, and the issues
26   presented for review.
27
28        We review the substantive reasonableness of a sentence
29   under an abuse-of-discretion standard. Gall v. United
30   States, 552 U.S. 38, 51 (2007). In applying that standard,
31   we must “take into account the totality of the
32   circumstances, giving due deference to the sentencing
33   judge’s exercise of discretion, and bearing in mind the
34   institutional advantages of district courts.” United States
35   v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (in banc). We
36   cannot “substitute our own judgment for the district court’s
37   on the question of what is sufficient to meet the § 3553(a)
38   considerations in any particular case,” and should “set
39   aside a district court’s substantive determination only in
40   exceptional cases where the trial court’s decision ‘cannot
41   be located within the range of permissible decisions.’” Id.
42   at 189 (quoting United States v. Rigas, 490 F.3d 208, 238
43   (2d Cir. 2007)); see also United States v. Fernandez, 443
44   F.3d 19, 27 (2d Cir. 2006) (“Reasonableness review does not

                                  2
 1   entail the substitution of our judgment for that of the
 2   sentencing judge.”). The substantive unreasonableness
 3   standard “provide[s] a backstop for those few cases that,
 4   although procedurally correct, would nonetheless damage the
 5   administration of justice because the sentence imposed was
 6   shockingly high, shockingly low, or otherwise unsupportable
 7   as a matter of law.” United States v. Rigas, 583 F.3d 108,
 8   123 (2d Cir. 2009).
 9
10        After considering the required statutory factors, see
11   18 U.S.C. § 3553(a), the district court concluded that an
12   above-Guidelines sentence was warranted due to Warren’s
13   callous disregard for the well-being of his intended
14   victims, a 13-year-old girl and a 9-year-old girl. Most
15   importantly, during the sentencing proceeding, the district
16   court stated that incapacitation of this defendant, together
17   with general deterrence, were the motivating factors behind
18   the above-Guidelines sentence. In any event, the sentence
19   exceeded by only five months the high-end of the Guidelines
20   range that Warren conceded was reasonable in his plea
21   agreement. On this record, we do not deem this one of the
22   “exceptional cases where the trial court’s decision cannot
23   be located within the range of permissible decisions.”
24   Cavera, 550 F.3d at 189 (internal quotation marks omitted).
25   Thus, we reject the claim that the sentence is substantively
26   unreasonable.
27
28        We have considered Warren’s remaining arguments and
29   find them to be without merit. For the foregoing reasons,
30   the judgment of conviction is AFFIRMED.
31
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




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