     14-2203
     United States v. Fernandini

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                SUMMARY ORDER
 5
 6   RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
 8   APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
10   OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
11   ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13        At a stated term of the United States Court of Appeals for
14   the Second Circuit, held at the Thurgood Marshall United States
15   Courthouse, 40 Foley Square, in the City of New York, on the
16   15th day of June, two thousand sixteen.
17
18   PRESENT: AMALYA L. KEARSE,
19            RALPH K. WINTER,
20            DENNIS JACOBS,
21                          Circuit Judges.
22
23   - - - - - - - - - - - - - - - - - - - -X
24   UNITED STATES OF AMERICA,
25            Appellee,
26
27                -v.-                                           14-2203
28
29   LEVIT FERNANDINI,
30            Defendant-Appellant.
31
32   - - - - - - - - - - - - - - - - - - - -X
33
34   FOR APPELLANT:                          Bruce R. Bryan, Syracuse, NY.
35
36   FOR APPELLEE:                           Jessica A. Masella, David W.
37                                           Denton, Jr., Anna M. Skotko,
38                                           Assistant United States
39                                           Attorneys, for Preet Bharara,


                                                1
 1                                United States Attorney for the
 2                                Southern District of New York, New
 3                                York, NY.
 4
 5        Appeal from a judgment of the United States District Court
 6   for the Southern District of New York (Crotty, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the judgment of the district court be AFFIRMED in
10   part and REMANDED in part.
11
12        Levit Fernandini appeals from the judgment of the United
13   States District Court for the Southern District of New York
14   (Crotty, J.) convicting him of (i) conspiracy to traffic
15   narcotics, (ii) using a firearm to commit murder during and in
16   furtherance of the narcotics trafficking conspiracy, and (iii)
17   discharging a firearm during and in furtherance of the narcotics
18   trafficking conspiracy. Fernandini was sentenced principally
19   to life imprisonment, which Fernandini challenges as
20   unreasonable. We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.

23        1. Our review of the substantive reasonableness of a
24   sentence is “particularly deferential”: we will set aside
25   sentences as substantively unreasonable “only in exceptional
26   cases where the trial court’s decision cannot be located within
27   the range of permissible decisions”; that is, if the sentence
28   “shock[s] the conscience,” if it “constitutes a manifest
29   injustice,” or if “allowing [it] to stand would damage the
30   administration of justice.” United States v. Aldeen, 792 F.3d
31   247, 255 (2d Cir. 2015) (internal quotation marks omitted).

32        The district court had sound reasons for imposing a
33   guidelines sentence of life imprisonment. Fernandini was the
34   leader of a notorious and ruthless gang for nearly a decade.
35   As gang leader, he significantly increased the quantity of
36   narcotics the organization imported and enforced the
37   organization’s territory with violence, including killing or
38   ordering the killing of rival gang members. The district court
39   had wide latitude to impose a sentence within the guidelines
40   range for Fernandini’s heinous conduct, notwithstanding the

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 1   abuse he suffered as a child and the efforts he has made in prison
 2   at rehabilitation. A sentence of life imprisonment does not
 3   create an unwarranted sentencing disparity with Fernandini’s
 4   co-defendants; he was the leader who reshaped the gang into a
 5   large-scale narcotics trafficking outfit that protected its
 6   territory with lethal force.

 7        2. We review a sentence for procedural reasonableness
 8   under a “deferential abuse-of-discretion standard.” Gall v.
 9   United States, 552 U.S. 38, 41 (2007). That means a district
10   court’s application of the Sentencing Guidelines is reviewed
11   de novo and its factual findings are reviewed for clear error.
12   United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A
13   sentence is procedurally unreasonable if the district court
14   “fails to calculate (or improperly calculates) the Sentencing
15   Guidelines range, treats the Sentencing Guidelines as
16   mandatory, fails to consider the § 3553(a) factors, selects a
17   sentence based on clearly erroneous facts, or fails adequately
18   to explain the chosen sentence.” Aldeen, 792 F.3d at 251
19   (quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)).

20        Fernandini fails to establish that the district court
21   committed any procedural error. The district adequately
22   explained the basis for its factual findings, made after a
23   hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d
24   Cir. 1979), and we see no clear error in those findings.
25   Similarly, the district court properly calculated Fernandini’s
26   offense level as 49 before applying an acceptance of
27   responsibility reduction, rather than capping it at the highest
28   offense level listed in the Sentencing Guidelines table (43)
29   before reducing it. See United States v. Caceda, 990 F.2d 707,
30   709-10 (2d Cir. 1993). Finally, Fernandini’s plea allocution
31   and the Fatico hearing furnished sufficient evidence to support
32   application of the sentencing guideline for first degree murder
33   rather than second degree murder.

34        3. Fernandini argues for the first time on appeal that his
35   guilty plea was factually insufficient. We review this claim
36   for plain error: there must be error, the error must be obvious,
37   affect the defendant’s substantial rights, and seriously affect
38   the fairness and integrity of the judicial proceeding. See,
39   e.g., United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009).

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 1   Fernandini cannot identify any error, let alone a plain one,
 2   because there was an adequate factual basis for his plea. The
 3   district court’s factual findings at the Fatico hearing and
 4   Fernandini’s own plea allocution establish that there was a
 5   sufficient basis for Fernandini to plead guilty to the count
 6   charging him with committing murder in furtherance of the drug
 7   trafficking conspiracy.

 8        4. Fernandini pleaded guilty to and was sentenced for
 9   using a firearm to commit murder during and in furtherance of
10   the narcotics trafficking conspiracy, in violation of 18 U.S.C.
11   § 924(j), and discharging a firearm during and in furtherance
12   of the narcotics trafficking conspiracy, in violation of 18
13   U.S.C. § 924(c). Fernandini asks that his § 924(c) conviction
14   be vacated as a lesser included offense of his § 924(j)
15   conviction. Because the government represented below that
16   Fernandini would not be sentenced on the § 924(c) count and the
17   district court imposed a life sentence of imprisonment on the
18   § 924(j) count, the government consents to vacatur of
19   Fernandini’s § 924(c) conviction. Accordingly, we remand with
20   instructions that the district court vacate the conviction and
21   sentence as to the § 924(c) count.

22        Accordingly, and finding no merit in Fernandini’s other
23   arguments, we hereby AFFIRM in part and REMAND in part the
24   judgment of the district court.

25                                FOR THE COURT:
26                                CATHERINE O’HAGAN WOLFE, CLERK




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