16-1565 (L)
United States v. Catul


                           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, at 40 Foley Square, in the City of New York, on
the 14th day of April, two thousand seventeen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         DENNIS JACOBS,
         PIERRE N. LEVAL,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           v.                                          No. 16-1565(L)
                                                                       No. 16-1578(CON)
JEAN CLAUDE CATUL,

                     Defendant-Appellant.
_____________________________________________

For Defendant-Appellant:          Colleen P. Cassidy, Federal Defenders of New York, Inc.,
                                  New York, NY.

For Appellee:                     Jo Ann M. Navickas and Mark E. Misorek, Assistant United
                                  States Attorneys, Of Counsel, for Bridget M. Rohde, Acting
                                  United States Attorney for the Eastern District of New York,
                                  Brooklyn, NY.
          Appeal from the United States District Court for the Eastern District of New York

(Irizarry, J.).

          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgments of the district court are AFFIRMED.

          Defendant-Appellant Jean Claude Catul appeals from two final judgments entered by the

district court (Irizarry, J.) on May 16, 2016, the first sentencing him principally to 72 months’

imprisonment for wire fraud and aggravated identity theft, and the second sentencing him to 36

months’ imprisonment to run consecutively for a violation of supervised release. In sum, the

district court sentenced Catul to 108 months’ imprisonment, a term of imprisonment 42 months

above the top of Catul’s combined Guidelines ranges. Catul challenges his above-Guidelines

sentence as procedurally and substantively unreasonable, contending that the district court erred

by imposing an above-Guidelines sentence solely on the basis of Catul’s criminal history when

that criminal history was already accounted for in Catul’s Guidelines ranges. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          “We review a sentence for procedural and substantive reasonableness under a ‘deferential

abuse-of-discretion standard.’” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)).

          Catul’s appeal is based on a mistaken premise. The district court did not base its variance

from the Guidelines solely on Catul’s criminal history. Rather, the district court justified its

above-Guidelines sentence by reference to the need to deter the defendant and to protect the

public from him, as well as to the fact that Catul had exhibited violent tendencies and had

received lenient sentences for prior convictions.



                                                    2
       Moreover, we have never held that a district court cannot impose an above-Guidelines

sentence on the basis of recidivism. Such a rule would be inconsistent with federal sentencing

law in the wake of United States v. Booker, 543 U.S. 220 (2005), and its progeny, under which it

is “emphatically clear that the Guidelines are guidelines — that is, they are truly advisory.”

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). While “[t]he Guidelines

provide the ‘starting point and the initial benchmark’ for sentencing,” district courts must

conduct their “own independent review of the sentencing factors” set forth in 18 U.S.C.

§ 3553(a) and are “generally free to impose sentences outside the recommended range.” Id.

(quoting Gall, 552 U.S. at 49). Indeed, “[a] sentencing judge has very wide latitude to decide the

proper degree of punishment for an individual offender and a particular crime.” Id. at 188.

       The district court did not exceed that latitude or otherwise err here. It acted within its

discretion in imposing an above-Guidelines sentence for the reasons it explained.

       We have considered all of the defendant’s arguments on this appeal and find in them no

basis for reversal. Accordingly, we AFFIRM the judgments of the district court.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




                                                  3
