     12-1925-cr
     United States v. Daniels

                          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 26th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                CHESTER J. STRAUB,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               12-1925-cr
17
18       RASHEED DANIELS,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        JAMES E. LONG, Albany, New York.
23
24       FOR APPELLEE:                         PAUL D. SILVER (Robert A.
25                                             Sharpe, on the brief), Assistant
26                                             United States Attorneys, for
27                                             Richard S. Hartunian, United
28                                             States Attorney for the Northern
29                                             District of New York, Albany,
30                                             New York.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Northern District of New York (Suddaby, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Rasheed Daniels, after pleading guilty to one count of
 9   conspiracy to possess with the intent to distribute more
10   than 28 grams of cocaine base and more than 500 grams of
11   cocaine, was sentenced by the United States District Court
12   for the Northern District of New York (Suddaby, J.) to 262
13   months’ imprisonment. He appeals the sentence, primarily
14   challenging his categorization as a career offender. We
15   assume the parties’ familiarity with the underlying facts,
16   the procedural history, and the issues presented for review.
17
18        Daniels argues that his 1994 youthful offender
19   adjudication in New York, for the sale of crack cocaine,
20   should not be counted as an adult felony to support his
21   classification as a career offender (resulting in a higher
22   Guidelines range of 262 to 327 months). This argument is
23   foreclosed by United States v. Jones, 415 F.3d 256 (2d Cir.
24   2005).
25
26        To the extent that Daniels argues that the district
27   court should have departed from the career offender
28   Guidelines range, we review the district court’s
29   determination for an abuse of discretion. But “[a] district
30   court’s refusal to depart downward is generally unreviewable
31   on appeal, unless its action falls within a few narrow
32   exceptions to the general rule,” for example, if the court
33   mistakenly believes it does not have authority to make a
34   departure. United States v. Duverge Perez, 295 F.3d 249,
35   255 (2d Cir. 2002) (internal citation omitted). The
36   district court considered Daniels’s arguments for a downward
37   departure, but found that Daniels’s extensive criminal
38   history justified the enhancement. Daniels presents no
39   evidence that the district court abused its discretion in
40   declining to depart downward, or that the court mistakenly
41   believed it lacked authority to do so.
42



                                  2
1        For the foregoing reasons, and finding no merit in
2   Daniels’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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