    15-2399
    United States v. Sahil Patel

                        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, 40 Foley Square, in the City of New
    York, on the 19th day of December, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             CHRISTOPHER F. DRONEY,
                             Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    United States of America,
             Appellee,

                -v.-                                       15-2399

    Sahil Patel,
             Defendant-Appellant.
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                      Malissa Baldwin (Marianne
                                        Mariano, on the brief), Federal
                                        Public Defender’s Office,
                                        Western District of New York,
                                        Buffalo, New York.

    FOR APPELLEES:                      Andrew C. Adams, Assistant
                                        United States Attorney, Joon H.
                                        Kim, United States Attorney for
                                        the Southern District of New
                                        York (Anna M. Skotko, Assistant
                                        United States Attorney, on the
                                        brief), New York, New York.

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     Appeal from a judgment of the United States District
Court for the Southern District of New York (Hellerstein,
J.)

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Sahil Patel appeals from the judgment of the United
States District Court for the Southern District of New York
sentencing him principally to 175 months in prison after he
pled guilty to conspiracy to commit extortion, conspiracy
to impersonate a federal officer, conspiracy to commit wire
fraud, and aggravated identity theft in connection with
international extortion and money laundering. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     Between December 2011 and November 2013, Patel
participated in a criminal conspiracy in which anonymous
callers based in India would impersonate FBI agents to
threaten victims in the United States with imminent arrest
unless they paid hundreds or thousands of dollars. He
pleaded guilty to all four counts charged in the indictment
without a plea agreement, and did not object during
sentencing to the Guidelines offense level of 34 and
sentencing range of 175 to 212 set forth in the
Government’s Pimentel letter. The district court sentenced
Patel to 151 months on Counts One through Three, the bottom
of the guidelines range, followed by a mandatory two years
for aggravated identity theft on Count Four.

     Patel challenges his guidelines sentence as
procedurally and substantively unreasonable. We review the
reasonableness of a sentence for abuse of discretion.
United States v. Cavera, 550 F.3d 180, 187 (2d Cir.
2008)(en banc)(citing Gall v. United States, 552 U.S. 38,
46 (2007)). This discretion is broad: although district
courts must consult the Sentencing Guidelines when imposing
sentence, they may “tailor the appropriate punishment to
each offense....” Id.; see United States v. Verkhoglyad,
516 F.3d 122, 128 (2d Cir. 2008) (noting the Sentencing
Commission policy statements are only advisory and are not
binding on the district court). A sentence within the
Guidelines range is entitled to “a presumption of
reasonableness.” Gall, 552 U.S. at 51.

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     1. A district court commits procedural error when,
inter alia, it fails to consider the Section 3553(a)
factors in explaining its chosen sentence or “rests its
sentence on a clearly erroneous finding of fact.” United
States v. Cavera, 550 F.3d at 190 (internal citations
omitted). “[W]e presume that a sentencing judge has
faithfully discharged her duty to consider the statutory
factors,” and “do not require robotic incantations” with
respect to each of them. United States v. Wagner-Dano, 679
F.3d 83, 89 (2d Cir. 2012) (internal quotation marks
omitted). The weight accorded any particular factor “is a
matter firmly committed to the discretion of the sentencing
judge....” Verkhoglyad, 516 F.3d at 131.

     Patel argues that his sentence was procedurally
unreasonable because the district court overstated his role
in the criminal conspiracy, which (Patel asserts) was a
limited effort to secure debit cards to process the
victims’ payments. Patel acknowledged at sentencing that
he had no factual objections to the Presentencing Report
(“PSR”) or to the guidelines calculation. See J. App’x
133, 135, 140-42. The PSR indicated that Patel obtained
the debit cards to which victims would deposit payment
using pre-paid “Money Pak” codes and wired the illicit
proceeds to India. It further detailed how Patel recruited
and led a team of subordinates to perform these functions
and serve as money laundering tools. To the extent Patel
argues that the district court erred in making reference to
Patel’s possible procurement of “lead sheets” that
contained identifying information for potential victims,
Patel’s concession that he had access to a shared email
account from which lead sheets were found defeats his claim
of district court error.

     The court characterized Patel’s recruitment of debit
card account holders as stealing people’s names. Patel
challenges that characterization, but the evidence adduced
by the Government during the sentencing process showed that
Patel took advantage of vulnerable and less intelligent
individuals who did not understand the precise nature of
the crime or its consequences. His counsel acknowledged at
sentencing that Patel “knew that real people were being
defrauded” as part of the scheme. J. App’x at 156.
Moreover, the overall scheme did involve stealing
identities, at least through the impersonation of actual
FBI agents.

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     Patel also challenges the Government’s assertion that
he was a leader or prominent player in aspects of the
conspiracy. He does not show, however, any unfair impact
on his sentence. He concedes that he recruited and
supervised others under his employ in the fraudulent
enterprise, and even referenced his “underlings” at the
sentencing hearing. J. App’x at 157. The Government
requested a Guidelines sentence to account for Patel’s
predatory behavior targeting financially dependent co-
conspirators and the need to deter deliberate fraud. In
reviewing Patel’s conduct in light of the Section 3553(a)
factors, the court focused on the wide ranging injurious
effects of the fraudulent scheme and Patel’s calculated
manipulation, not on his purported leadership position.
The district court did not err by rejecting the Patel’s
“self-serving characterization[] of his role....” United
States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993).

     Patel further contends that a downward departure was
warranted because the cumulative impact of the various
enhancements “substantially overstates the seriousness of
the offense.” See U.S.S.G. § 2B1.1, cmt. n.20(C). The
offense level of 34 reflected increases based on: more
than 250 victims, § 2B1.1(b)(2)(C); the loss exceeding $1
million, § 2B1.1(b)(1)(I); the co-conspirators’
misrepresentations that they were acting on behalf of the
FBI and the IRS, § 2B1.1(b)(9)(A); and the international
dimension of the sophisticated crime, § 2B1.1(b)(10).
Patel fails to challenge the technical propriety of any of
these enhancements or the accuracy of the resulting
Guidelines calculation. See United States v. Cavera, 550
F.3d at 190.

     It is not procedural error for the court to refuse a
discretionary downward departure after reviewing the
Section 3553(a) factors. Here the district court decided
upon a considered review that a sentence at the bottom end
of the Guidelines range sufficed to capture the seriousness
of the offense. This decision is within the sound
discretion of the district court, and lies beyond our
limited review.1 See Verkhoglyad, 516 F.3d at 131; United
States v. Carpenter, 252 F.3d 230, 234 (2d Cir. 2001).

1 For the same reason, Patel’s contention that the court
failed to consider his drug addiction is meritless. The
court considered the addiction, but did not find it
persuasive as a mitigating factor. J. App’x at 163.
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     2.    Substantive reasonableness doctrine serves as a
“backstop for those few cases that, although procedurally
correct, would nonetheless damage the administration of
justice because the sentence imposed was shockingly high,
shockingly low, or otherwise unsupportable as a matter of
law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
2009). We “set aside a district court’s substantive
determination only in exceptional cases where the trial
court’s decision ‘cannot be located within the range of
permissible decisions.’” United States v. Cavera, 550 F.3d
at 189.

     We may afford a “presumption of reasonableness” to
Guidelines sentences. Rita v. United States, 551 U.S. 338,
346-47 (2007); see Gall, 552 U.S. at 51. Here, the
sentence was at the bottom of the Guidelines range. Patel
provides no rebuttal beyond the criticism of the statutory
enhancements that he challenges on procedural grounds. At
sentencing, the judge offered a thoughtful explanation of
why the multiple enhancements and resulting lengthy
sentence served the interests of justice and deterrence
considering the specific nature of this scheme and the
impact of Patel’s conduct. Given the totality of the
circumstances and our deference to the district court’s
analysis, the Guidelines sentence was substantively
reasonable. See Rigas, 583 F.3d at 123-24.

     For the foregoing reasons, and finding no merit in
Patel’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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