         09-3894-cr
         USA v. Almonte

                                 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 11th day of May, two thousand eleven.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                ROGER J. MINER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                09-3894-cr
18
19       JOSE FERREIRA ALMONTE, also known as Jose Almonte, also
20       known as Jose Virgilio,
21
22                                     Defendant-Appellant.
23
24
25
26       FOR APPELLANT:                DARRELL B. FIELDS, Federal Defenders of
27                                     New York, Inc., New York, NY.
28
29       FOR APPELLEE:                 BURTON T. RYAN, JR., Assistant United
30                                     States Attorney (David C. James,
31                                     Assistant United States Attorney, on the

                                                 Page 1 of 4
1                         brief) for Loretta E. Lynch, United
2                         States Attorney for the Eastern District
3                         of New York, Brooklyn, NY.
4
5         Appeal from the United States District Court for the
6    Eastern District of New York (Bianco, J.).
7
8         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the district court be

10   AFFIRMED.

11        Defendant-Appellant Jose Ferreira Almonte appeals from

12   a September 18, 2009 judgment of the United States District

13   Court for the Eastern District of New York (Bianco, J.)

14   sentencing him to ninety-six months’ imprisonment and three

15   years’ conditional supervised release for illegally

16   reentering the United States in violation of 8 U.S.C.

17   § 1326(a), (b).     Almonte, through a pro se supplemental

18   letter brief, contends for the first time on appeal that his

19   sentence is substantively unreasonable in light of 18 U.S.C.

20   § 3553(a)’s parsimony clause.1       We assume the parties’

21   familiarity with the underlying facts, the procedural

          1
            We construe Almonte’s letter challenging the sentence’s
     “fairness” as a substantive reasonableness challenge. “It is well
     established that the submissions of a pro se litigant must be
     construed liberally and interpreted to raise the strongest arguments
     that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
     471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks
     omitted).
          In addition to Almonte’s letter, we have also considered a
     supplemental letter filed at the Court’s request by Almonte’s counsel
     on April 26, 2011.

                                 Page 2 of 4
1    history, and the issues presented for review.

2        We review the substantive reasonableness of a sentence

3    under an abuse of discretion standard.   Gall v. United

4    States, 552 U.S. 38, 51 (2007).   In applying that standard,

5    we must “take into account the totality of the

6    circumstances, giving due deference to the sentencing

7    judge’s exercise of discretion, and bearing in mind the

8    institutional advantages of district courts.”    United States

9    v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). We

10   will not “substitute our own judgment for the district

11   court’s on the question of what is sufficient to meet the

12   § 3553(a) considerations in any particular case,” and will

13   “set aside a district court’s substantive determination only

14   in exceptional cases where the trial court’s decision

15   ‘cannot be located within the range of permissible

16   decisions.’”   Id. at 189 (quoting United States v. Rigas,

17   490 F.3d 208, 238 (2d Cir. 2007)).

18       Here, the district court noted that Almonte is a

19   violent offender who has been convicted of six crimes since

20   2002; weighed the relevant mitigating factors, particularly

21   the sentence’s effect on Almonte’s children; and imposed a

22   within-Guidelines sentence designed to achieve deterrence in


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1    light of Almonte’s present conviction for illegally

2    reentering the United States.    This does not present one of

3    the “exceptional cases where the trial court’s decision

4    cannot be located within the range of permissible

5    decisions.”   Cavera, 550 F.3d at 189 (internal quotation

6    marks and citation omitted).    Accordingly, we find no error

7    in the district court’s decision, let alone plain error.

8        We have reviewed Almonte’s remaining arguments and find

9    them to be without merit.   For the foregoing reasons, the

10   judgment of the district court is hereby AFFIRMED.

11
12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15




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