     10-185-cr
     United States v. Reynoso

                          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 March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                REENA RAGGI,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-185-cr
17
18       JOSE GONZALES, JR.,
19                Defendant,
20
21       FAUSTO REYNOSO,
22                Defendant-Appellant.*
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:            Laurie S. Hershey, Manhasset, New York.

                *
                 The Clerk of the Court is respectfully directed to amend the official
         caption in this action to conform to the caption as set forth above. All
         appellate issues related to United States v. Rojas, 10-522-cr have been
         adjudicated in a separate order entered today.
 1
 2   FOR APPELLEE:          Bonnie S. Klapper, Susan Corkery,
 3                          Assistant United States Attorneys,
 4                          for Loretta E. Lynch, United States
 5                          Attorney the Eastern District of New
 6                          York, Brooklyn, New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Eastern District of New York (Amon, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Reynoso pleaded guilty (without a plea agreement) to
16   one count of conspiracy to distribute heroin in violation of
17   21 U.S.C. § 846 and three counts of heroin distribution in
18   violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(i).
19   Reynoso was sentenced principally to a below-Guidelines
20   sentence of seventy-five months of incarceration on the
21   conspiracy count and seventy-five months of incarceration on
22   the substantive counts, with the terms of incarceration to
23   run concurrently. Reynoso challenges his sentence, arguing
24   that the district court misapprehended its authority to
25   further reduce his sentence based on the impurity of the
26   heroin. We assume the parties’ familiarity with the
27   underlying facts, the procedural history, and the issues
28   presented for review.
29
30        This court reviews sentences for reasonableness, which
31   “amounts to [a deferential] review for abuse of discretion.”
32   United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008)
33   (in banc); see also Gall v. United States, 552 U.S. 38, 41
34   (2007) (“[C]ourts of appeals must review all sentences--
35   whether inside, just outside, or significantly outside the
36   Guidelines range--under a deferential abuse-of-discretion
37   standard.”). A review of the record reveals that the
38   district court properly calculated the Guidelines range and
39   treated the Guidelines as advisory. See United States v.
40   Preacely, 628 F.3d 72, 79 (2d Cir. 2010).
41
42        Evidence obtained pursuant to a court-ordered wiretap
43   shows that Reynoso complained about the poor quality of the
44   heroin he was able to obtain and that he sought higher
45   purity drugs. Given these facts, the district court
46   concluded that Reynoso’s contention that impurity should
47   serve as a mitigating factor was unpersuasive. “Trafficking

                                  2
 1   in controlled substances . . . of unusually high purity may
 2   warrant” an above-Guidelines sentence. U.S. Sentencing
 3   Guidelines § 2D1.1, Application Note 9. We need not decide
 4   whether the converse is true. The district court was within
 5   its discretion in declining to further reduce Reynoso’s
 6   sentence based on low drug purity. The record makes clear
 7   that the district judge “faithfully discharged her duty to
 8   consider the statutory factors” in sentencing Reynoso and
 9   his sentence should be affirmed. United States v. Legros,
10   529 F.3d 470, 478 (2d Cir. 2008) (internal quotation marks
11   omitted).
12
13        Finding no merit in the arguments raised by Reynoso on
14   appeal, we hereby AFFIRM the judgment of the district court.
15
16
17                              FOR THE COURT:
18                              CATHERINE O’HAGAN WOLFE, CLERK
19
20




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