10-2503-cr
United States v. John Doe

                    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, 500 Pearl Street, in the City of New
York, on the 7th day of September, two thousand eleven.

PRESENT:     CHESTER J. STRAUB,
             DENNY CHIN,
                       Circuit Judges,
             LORETTA A. PRESKA,
                       Chief District Judge.*

- - - - - - - - - - - - - - - - - - - -x

UNITED STATES OF AMERICA,
          Appellee,
             -v.-                                     10-2503-cr
JOHN DOE,1
             Defendant-Appellant.

- - - - - - - - - - - - - - - - - - - -x

FOR DEFENDANT-APPELLANT:            JEREMY GUTMAN, New York, New York.

FOR APPELLEE:                       EMILY BERGER, MARTIN E. COFFEY,
                                    Assistant United States Attorneys,
                                    for LORETTA E. LYNCH, United States
                                    Attorney for the Eastern District
                                    of New York, Brooklyn, New York.




      *
          The Honorable Loretta A. Preska, of the United States
District Court for the Southern District of New York, sitting by
designation.
      1
          By a motion dated May 6, 2011 appellant requested that
any opinion or order of this Court discussing his cooperation
appear under the caption "United States v. John Doe" and that the
names of appellant, his co-defendant, and the entity involved in
the offense not be specified. The government has not opposed the
motion. In light of appellant's safety concerns, the motion is
granted.
           Appeal from the United States District Court for the

Eastern District of New York (Weinstein, J.).    UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED.

           Defendant-appellant John Doe appeals from the district

court's judgment, entered June 18, 2010, sentencing him

principally to 24 months' imprisonment.   Doe challenges the

sentence on the grounds that it was unreasonable.   He contends

that his sentence was procedurally defective (a) because the

district court did not properly consider his cooperation with the

government; and (b) because the district court did not adequately

explain the reasons for the disparity between the sentence it

imposed on Doe and the sentence it imposed on Doe's co-

conspirator.   Doe also contends that his sentence was

substantively unreasonable because it was four times greater than

that of his co-conspirator, who, according to Doe, was more

culpable then he.

           We assume the parties' familiarity with the facts and

procedural history of the case, which we briefly summarize as

follows:

           Between 1998 and 2004, Doe was employed by Company, a

now-bankrupt corporation.   Doe worked for Company, first as an

independent consultant and later as vice president.   During Doe's

tenure at Company, he and Jane Roe, the owner of Company,

embezzled money from it.    Neither Doe nor Roe reported the

proceeds from the embezzlement as income on his or her personal

tax returns.

                                - 2 -
            Doe was charged, by criminal information, with

conspiracy to defraud the United States, in violation of 18

U.S.C. § 371.    Doe agreed to cooperate, including against Roe,

who had been charged separately with conspiracy to defraud the

United States.    Doe pled guilty, pursuant to a plea agreement.

Before his sentencing, the government moved for a downward

departure from the guidelines pursuant to § 5K1.1 of the

Sentencing Guidelines, to reflect the substantial assistance Doe

provided to the government.    Roe eventually pled guilty, and was
sentenced principally to six months' imprisonment.

            At Doe's sentencing on May 26, 2010, the district court

initially imposed a sentence of 30 months' incarceration -- a

downward departure from the applicable guidelines range (37-40

months).    After the announcement of the sentence, defense counsel

noted that the district court had not made reference to the

government's § 5K1.1 motion.   During the ensuing discussion, the

district court explained why it had given Roe a six-month

sentence.
            The district court then decided sua sponte to

"reconsider the matter over the weekend . . . before finally

imposing sentence."   (May 26, 2010 Sent. Tr. 22).   During the

second sentencing hearing six days later, the court stated, "[i]n

view of the strong cooperation [by Doe], I sentence the defendant

to 24 months, after reconsideration."    (June 1, 2010 Sent. Tr.

5).   The court noted that Doe's cooperation was an important

consideration in reducing the sentence from 30 to 24 months, but

explained that it had also considered the government's § 5K1.1

                                - 3 -
letter during the first sentencing hearing on May 26.    This

appeal followed.

             We review the district court's sentencing determination

under a "'deferential abuse-of-discretion standard.'"    United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (quoting Gall

v. United States, 552 U.S. 38, 40 (2007)).

             A sentence must be procedurally and substantively

reasonable.    Gall, 552 U.S. at 51; Cavera, 550 F.3d at 189.     A

district court commits procedural error "if it does not consider

the § 3553(a) factors" or "fails adequately to explain its chosen

sentence."    Cavera, 550 F.3d at 190.   There is "a strong

presumption that the sentencing judge has considered all

arguments properly presented [], unless the record clearly

suggests otherwise."    United States v. Fernandez, 443 F.3d 19, 29

(2d Cir. 2006).     "[W]hen conducting substantive review, [this

Court] take[s] into account the totality of the circumstances,

giving due deference to the sentencing judge's exercise of

discretion."    Cavera, 550 F.3d at 190.   It "will instead 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.'"    Id. at 189

(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.

2007)) (emphasis in original).     In making this assessment, this

Court "will not substitute its own judgment for the district

court's on the question of what sentence is sufficient to satisfy

the 3553(a) considerations in any particular case."    Id.



                                 - 4 -
           Doe argues that his 24-month sentence was procedurally

unreasonable because the district court did not properly consider

the government's § 5K1.1 letter during his sentencing.      The

record, however, shows otherwise, for the district court clearly

did consider Doe's cooperation with the government.      Indeed, the

district court adjourned the sentencing to consider further Doe's

cooperation, and at the second hearing, the district court

further reduced Doe's sentence in light of his cooperation.       The

district court noted specifically that it had considered Doe's

cooperation both initially and again on further review.

           Doe also argues that his sentence was procedurally

unreasonable "because the extreme disparity between [Doe]'s

sentence and [Roe]'s had no stated explanation."      (Appellant Br.

30) (internal quotation marks omitted).      Again, Doe's assertion

is not supported by the record, as the district court did provide

an explanation for the disparity.      At the May 26 hearing, the

district court stated that Roe "had emotional and other problems

that required a six-month sentence."      (May 26, 2010 Sent.

Tr.21).2

           Finally, Doe claims that his sentence was substantively

unreasonable.   As a preliminary matter, we note that a guidelines

sentence will, in the "overwhelming majority of cases," "fall

comfortably within the broad range of sentences that would be


     2
          During Roe's sentencing, the district court had noted
that she had suffered a series of emotional problems related to
repeated sexual abuse, alcohol abuse (which she had since
overcome), and the death of her son one week prior to her
sentencing. While Roe had not cooperated with the government,
she had assisted the bankruptcy trustee in connection with
Company's bankruptcy.
                               - 5 -
reasonable in the particular circumstances."   Fernandez, 443 F.3d

at 27.   Accordingly, a defendant -- like Doe -- "who receives the

benefit of a below-Guidelines sentence bears a heavy burden in

arguing that his sentence is unreasonably high."   United States

v. Rosen, 296 F. App'x 188, 193 (2d Cir. 2008) (summary order).

Doe attempts to bear this burden by noting that his sentence was

four times greater than the sentence imposed on Roe; according to

Doe, the evidence was insufficient to justify such a disparity.

In light of the full record -- including the lower guidelines

range applicable to Roe, and her emotional issues -- we cannot

conclude that the district court abused its discretion by holding

otherwise.

          We have considered Doe's remaining arguments and they

are rejected.

          For the reasons stated above, the judgment of the

district court is AFFIRMED.

                          FOR THE COURT:
                          CATHERINE O’HAGAN WOLFE, CLERK




                               - 6 -
