     15-3417
     United States v. Diaz

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 10th day of January, two thousand seventeen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                SUSAN L. CARNEY,
 9                              Circuit Judges,
10
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12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               15-3417
16
17       FREDDIE DIAZ,
18                Defendant-Appellant,
19
20       FRANCISCO GOMEZ,
21                Defendant.
22
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24
25
26       FOR APPELLANT:                        MARSHA R. TAUBENHAUS, New York,
27                                             New York.
28

                                                  1
1    FOR APPELLEE:                NEGAR TEKEEI and MARGARET
2                                 GARNETT, for Preet Bharara,
3                                 United States Attorney for the
4                                 Southern District of New York.
5
6        Appeal from a judgment of the United States District

7    Court for the Southern District of New York (Buchwald, J.).

8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the district court be

10   AFFIRMED.

11       Freddie Diaz appeals from the judgment of the United

12   States District Court for the Southern District of New York

13   (Buchwald, J.) imposing a prison sentence of 72 months,

14   following a plea.    We assume the parties’ familiarity with

15   the underlying facts, the procedural history, and the issues

16   presented for review.    We affirm because the substantially

17   below Guidelines sentence was procedurally and substantively

18   reasonable.

19       Diaz pleaded guilty to one count of conspiracy to

20   distribute at least 500 grams of cocaine.    Because he was a

21   career offender, his Sentencing Guidelines range was 188 to

22   235 months imprisonment and he faced a mandatory minimum of

23   60 months.    The district court sentenced him below

24   Guidelines to 72 months.

25       We review sentences under an abuse of discretion

26   standard for both procedural error and substantive


                                    2
1    unreasonableness.     United States v. Bennett, 839 F.3d 153,

2    159 (2d Cir. 2016).    Diaz argues that the district court

3    procedurally erred by failing to consider three factors:

4    1) the conditions of his pretrial confinement; 2) his

5    psychological history; and 3) evidence that his prior crimes

6    involved poor impulse control.      He also argues that his

7    sentence was substantively unreasonable when compared to his

8    codefendant’s sentence.

9        Diaz’s procedural challenges fail.      Diaz’s sentencing

10   submission and the Presentence Report both reviewed his

11   conditions of confinement and psychological history, and the

12   district court repeatedly addressed the Presentence Report

13   at sentencing.   As we have explained, “[a] sentencing court

14   does not have to parse every sentencing factor . . . or

15   address each of the defendant’s arguments regarding various

16   factors, for a sentence to be procedurally reasonable.”

17   United States v. Pattee, 820 F.3d 496, 512 (2d Cir. 2016).

18   Moreover, at sentencing, the district court explicitly

19   considered both his psychological history and his youth at

20   the time he committed the crimes.      The below-Guidelines

21   sentence strongly suggests that these mitigating factors

22   were taken into account.    There was no abuse of discretion.

23       Diaz’s substantive challenge is that his sentence of 72

24   months was disproportionate to his codefendant’s sentence

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1    (48 months).   We will vacate sentences as substantively

2    unreasonable only if they are “so shockingly high,

3    shockingly low, or otherwise unsupportable as a matter of

4    law that allowing them to stand would damage the

5    administration of justice.”     United States v. Aldeen, 792

6    F.3d 247, 255 (2d Cir. 2015) (internal quotation marks

7    omitted).   The disparity between the sentences does not

8    shock the conscience (especially given Diaz’s codefendant’s

9    “safety valve” eligibility under Sentencing Guidelines

10   §§ 2D1.1(b)(17) and 5C1.2), and it was therefore

11   substantively reasonable.     Id.

12       For the foregoing reasons, and finding no merit in

13   Diaz’s other arguments, we hereby AFFIRM the judgment of the

14   district court.

15
16
17                                 FOR THE COURT:
18                                 CATHERINE O’HAGAN WOLFE, CLERK
19




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