17-2033-cr
United States v. Carter

                     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 11th day of June, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             DENNY CHIN,
             RAYMOND J. LOHIER, JR.,
                             Circuit Judges.

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    United States of America,
             Appellee,

                 -v.-                                               17-2033-cr

    Garrett Carter,
             Defendant-Appellant.
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    FOR APPELLANT:                        W. Theodore Koch III, Esq.,
                                          Niantic, CT.

    FOR APPELLEE:                         Michael J. Gustafson, Assistant
                                          United States Attorney, on
                                          behalf of John H. Durham, United
                                          States Attorney for the District
                                          of Connecticut (Brian P.

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                           Leaming, Sandra S. Glover,
                           Assistant United States
                           Attorneys, on the brief), New
                           Haven, CT.

     Appeal from a judgment of the United States District
Court for the District of Connecticut (Thompson, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Garrett Carter appeals from the judgment of the United
States District Court for the District of Connecticut
sentencing Carter principally to 70 months’ imprisonment for
possession with intent to distribute, and distribution of, a
controlled substance, which he challenges as procedurally
and substantively unreasonable. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     Carter was arrested in Hartford, Connecticut after he
delivered a package containing 600 grams of Phencyclidine
(“PCP”) to an FBI cooperator. He pled guilty to possession
with intent to distribute, and distribution of, at least 100
grams of PCP, an offense that ordinarily carries a mandatory
minimum ten-year sentence. The Probation Office determined
that Carter qualified for a sentence reduction under the
“safety valve” provision of 18 U.S.C. § 3553(f), which
lowered the Guidelines range to 70 to 87 months. See
U.S.S.G. § 5C1.2. At sentencing, the Government argued for
70 months’ imprisonment, citing the dangerousness as well as
the quantity of PCP and Carter’s numerous prior transactions
as a supplier of PCP to the same Hartford dealer. Carter
sought a below-Guidelines sentence of 30 months, arguing
that he was not a hardened criminal, but instead a good
person who saw a financially lucrative opportunity and made
a “bad choice.” App’x at 120, 127, 133-34.

     The district court granted Carter relief from the 10-
year mandatory minimum pursuant to the safety valve, and
imposed a Guidelines sentence of 70 months’ imprisonment
with credit for time served followed by four years of
supervised release. The district court explained its
consideration of the sentencing factors, including its
desire to impose just punishment; the seriousness of the
offense, which ordinarily carries a higher mandatory

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minimum; and Carter’s background. Defense counsel did not
object at sentencing to the district court’s findings or
sentence.

     On appeal, Carter challenges his sentence as
procedurally and substantively unreasonable. Because Carter
failed to lodge an objection at sentencing, we review
Carter’s reasonableness challenge for plain error. See
United States v. Villafuerte, 502 F.3d 204, 207-09 (2d Cir.
2007)(“[I]ssues not raised in the trial court because of
oversight, including sentencing issues, are normally deemed
forfeited on appeal unless they meet [the] standard for
plain error.”).

     “A district court commits procedural error where it
fails to calculate (or improperly calculates) the Sentencing
Guidelines range, treats the Sentencing Guidelines as
mandatory, fails to consider the § 3553(a) factors, selects
a sentence based on clearly erroneous facts, or fails
adequately to explain the chosen sentence.” United States
v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)). Although the
district court must “conduct its own independent review of
the sentencing factors,” United States v. Cavera, 550 F.3d
180, 189 (2d Cir. 2008) (en banc), the Guidelines provide
the “starting point and the initial benchmark” for
sentencing. Gall, 552 U.S. at 49. As to the Section
3553(a) factors, “we will not assume a failure of
consideration simply because a district court fails to
enumerate or discuss each” factor individually. United
States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008); see
also United States v. Wagner-Dano, 679 F.3d 83, 89 (2d Cir.
2012) (“[W]e presume that a sentencing judge has faithfully
discharged her duty to consider the statutory factors.”)
(internal quotation marks omitted).

     Carter contends that the district court erroneously
presumed that a Guidelines sentence was reasonable, and
failed to fully explain its reasoning for the chosen
sentence. The district court conducted a searching review
of the offense conduct and of Carter’s individual
circumstances, and recited its reasons for fixing on a 70-
month sentence. App’x at 129-30, 140, 145-49. The judge
was not required to specifically “address every argument the
defendant has made or discuss every [Section] 3553(a) factor
individually.” Villafuerte, 502 F.3d at 210; see also
United States v. Goffi, 446 F.3d 319, 321 (2d Cir. 2006)

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(there is no “require[ment] that a district court refer
specifically to every factor in section 3553(a)”).

     Carter faults the district court for relying on the
Guidelines as a standard by which to measure Carter against
‘typical’ defendants. But it was proper for the district
court to consider the Guidelines as a “benchmark” alongside
its review of the statutory factors when imposing sentence.
See Gall, 552 U.S. at 49; Villafuerte, 502 F.3d at 210.
There was therefore no error, plain or otherwise, in the
district court’s conclusion that the bottom of the
Guidelines range reflected, in Carter’s case and in
consideration of the appropriate factors, a sentence that
was sufficient but not greater than necessary.

     Carter also argues that his 70-month sentence is
substantively unreasonable. We will “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.” United States v.
Norman, 776 F.3d 67, 86 (2d Cir. 2015) (emphasis and
citation omitted); see Rita v. United States, 551 U.S. 338,
350-51 (2007).

     Carter’s principal argument is that the district court
gave insufficient weight to his personal characteristics as
a non-violent, first time offender. See Appellant’s Br. 26-
27. However, Carter already received a substantial
sentencing reduction as a result of his status: the safety
valve provision released him from a ten-year mandatory
minimum, and his acceptance of responsibility conferred
additional mitigation. Moreover, the district court
considered (and was unpersuaded by) defense counsel’s
contention that Carter deserved a below-Guidelines sentence
because he was not “a drug dealer by trade,” just a “good
person who just sold drugs.” App’x at 127. The court noted
that Carter had conducted multiple illicit transactions at
large volume of an extremely dangerous substance, and that
Carter failed to identify any mitigating factors that
distinguish him from defendants who are sentenced more
harshly. E.g., id. at 144-49. Carter’s view
notwithstanding, the particular weight assigned to any
Section 3553(a) factor “is a matter firmly committed to the
discretion of the sentencing judge and is beyond our
review.” Verkhoglyad, 516 F.3d at 131 (internal citation
and quotation marks omitted).


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     A 70-month sentence in the circumstances here does not
make for the “rare case” that falls outside the range of
permissible decisions for the distribution of PCP. United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). We
therefore decline to disturb the sound exercise of
discretion by the district court. See id.
     For the foregoing reasons, and finding no merit in
Carter’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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