 10-0202-cr
 USA v. Reyes-Navarette

                              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
 Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
 on the 4th day of February, two thousand eleven.

 Present: JOHN M. WALKER, JR.,
          CHESTER J. STRAUB,
          ROBERT A. KATZMANN,
                            Circuit Judges,
 ____________________________________________________________

 UNITED STATES OF AMERICA,

                             Appellee,

                             -v-                            No. 10-0202-cr


 JOSE REYES-NAVARETTE,

                      Defendant-Appellant.
 ____________________________________________________________

 For Defendant-Appellant:                           Colleen P. Cassidy, Federal Defenders of New
                                                    York, Inc., Appeals Bureau, New York, N.Y.

 For Appellee:                                      Carrie H. Cohen (Michael D. Maimin, of
                                                    counsel), Assistant United States Attorney, for
                                                    Preet Bharara, United States Attorney for the
                                                    Southern District of New York
        Appeal from the United States District Court for the Southern District of New York

(Cote, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Jose Reyes-Navarette appeals from a January 15, 2010 judgment of

the United States District Court for the Southern District of New York (Cote, J.) entered

following a plea of guilty to one count of distributing and possessing with intent to distribute 500

grams or more of a substance containing a detectable amount of cocaine, in violation of 21

U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). The district court sentenced Reyes-Navarette

principally to 37 months’ imprisonment. We assume the parties’ familiarity with the underlying

facts, procedural history of this case, and the specification of issues on appeal.

        Reyes-Navarette contends that his sentence (1) is procedurally and substantively

unreasonable because the district court erred in rejecting his sentencing manipulation argument

and (2) is substantively unreasonable because the district court placed undue weight on the 18

U.S.C. § 3553(a) factor of deterrence. We review the sentence imposed by the district court for

reasonableness, which “amounts to review 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)). “A

district court commits procedural error where it fails to calculate the Guidelines range . . . ,

makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory. It also errs

procedurally if it does not consider the § 3553(a) factors, or rests its sentence on a clearly

erroneous finding of fact,” or fails to explain adequately its sentence. Id. at 190 (citing Gall, 552

U.S. at 50) (internal citations omitted). Substantive determinations shall be set aside “only in


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exceptional cases where the trial court’s decision ‘cannot be located within the range of

permissible decisions.’” Id. at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.

2007)). “Generally, ‘[i]f the ultimate sentence is reasonable and the sentencing judge did not

commit procedural error in imposing that sentence, we will not second guess the weight (or lack

thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that

factor.’” United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009) (alteration in original)

(quoting United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006)).

       We turn first to Reyes-Navarette’s argument that the government attempted to engage in

sentencing manipulation when the confidential informant pressed Reyes-Navarette to obtain

more than the half a kilogram of cocaine that Reyes-Navarette stated that he had “left.” App’x

58. We have “not yet recognized the doctrine of sentencing manipulation, which occurs ‘when

the government engages in improper conduct that has the effect of increasing the defendant’s

sentence.’” United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007) (quoting United States

v. Gomez, 103 F.3d 249, 256 (2d Cir. 1997)). We have suggested that should this doctrine be

held to be “valid, ‘it would likely require a showing of “outrageous” government conduct.’” Id.

(quoting United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000)); see also United States v.

DePierre, 599 F.3d 25, 29 (1st Cir. 2010) (requiring a “very high” threshold to show sentencing

manipulation); United States v. Knox, 573 F.3d 441, 451 (7th Cir. 2009) (requiring “outrageous

conduct solely for the purpose of increasing the defendant’s sentence under the Sentencing

Guidelines” (quoting United States v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006)) (internal

quotation mark omitted)).

       We need not decide whether to recognize the validity of the sentencing manipulation


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doctrine at this time, because the government’s conduct does not approach the level that would

be required to invoke the doctrine. First, we note that the 500 grams offered by Reyes-Navarette

and the 800 grams requested by the confidential informant would trigger the same mandatory

minimum and Sentencing Guidelines offense level. Second, the confidential informant’s request

for a larger quantity appears to be based on quantities, including 300 grams of lower-quality

cocaine, to which Reyes-Navarette had, in previous conversations, indicated that he had access.

Nothing in the record indicates that the district court failed to understand or consider the

applicable legal standards, the relevant factual circumstances, or defendant’s arguments.

Fernandez, 443 F.3d at 30. Accordingly, the district court committed neither procedural nor

substantive error in declining to grant a variance based on Reyes-Navarette’s sentencing

manipulation argument. Even assuming that the sentencing manipulation doctrine were

available in this Circuit, any procedural error would be harmless, because the district court

explicitly stated that it would impose the same sentence even were it to take the sentencing

manipulation argument into account. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).

       Turning to Reyes-Navarette’s argument that the district court placed undue weight on

deterrence in crafting his sentence, we find this argument to be equally unavailing. The district

court explicitly acknowledged the need to consider the factors under § 3553(a) and expressly

noted and rejected defendant’s other arguments pertaining to his personal circumstances. The

weight given by the district court to specific and general deterrence in this case is exactly the sort

of exercise of discretion that “we will not second guess.” Pope, 554 F.3d at 247 (quoting

Fernandez, 443 F.3d at 34).




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       We have considered all of Reyes-Navarette’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

hereby AFFIRMED.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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