11-0649-cr
USA v. Lerebours-Marte

                           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 Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of April, two thousand twelve.

Present:
         DENNIS JACOBS,
                     Chief Judge,
         ROBERT A. KATZMANN,
                     Circuit Judge,
         JOHN F. KEENAN,
                     District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                    No. 11-0649-cr

GIOVANNI LEREBOURS-MARTE, AKA CABALLO,

           Defendant-Appellant,

MARQUETY CASTILLO-SOSA, AKA EL VECINO, BIENVENIDO VARGAS, JR., SARAH
LOPEZ, AKA, SARAH VARGAS, AKA SARAH VARGAS TORRES,
         Defendants.
________________________________________________


       *
          The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
For Defendant-Appellant:           JAMES M. BRANDEN, Law Office of James M. Branden, New
                                   York, N.Y.

For Appellee:                      TONI MELE (Susan Corkery, on the brief), Assistant United
                                   States Attorneys, for Loretta E. Lynch, United States Attorney
                                   for the Eastern District of New York, Brooklyn, N.Y.


       Appeal from the United States District Court for the Eastern District of New York
(Garaufis, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-appellant Giovanni Lerebours-Marte appeals from a February 15, 2011

judgment of conviction of the United States District Court for the Eastern District of New York

(Garaufis, J.), convicting him, following a guilty plea, of conspiracy to distribute one kilogram

or more of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and

attempt to possess one kilogram or more of heroin and five kilograms or more of cocaine, in

violation of 21 U.S.C. § 846. The district court principally sentenced the defendant to 405

months’ imprisonment. On appeal, Lerebours-Marte first contends that his sentence is

procedurally unreasonable because the district court (1) failed to state the reasons for applying a

particular sentence within the Guidelines range pursuant to 18 U.S.C. § 3353(c)(1), and (2) failed

to provide a statement of reasons for the sentence in the written judgment pursuant to 18 U.S.C.

§ 3553(c)(2). He also argues that his sentence is substantively unreasonable. We presume the

parties’ familiarity with the facts and procedural history of this case.

       We review a district court’s sentence for “reasonableness, which is ‘akin to review for

abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds


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of allowable discretion, committed an error of law in the course of exercising discretion, or made

a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)

(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). “A district

court commits procedural error where it fails to calculate the Guidelines range (unless omission

of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the

Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a

clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United

States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal citation omitted). Where

the Court determines that there was no procedural error in a district court’s sentencing, it “then

considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard, taking into account the totality of the circumstances.” United States v. Rigas, 583 F.3d

108, 121 (2d Cir. 2009) (internal quotation marks omitted). Although we do not presume that a

sentence within the Guidelines range is reasonable, United States v. Dorvee, 616 F.3d 174, 183

(2d Cir. 2010), a district court’s substantive findings will be set aside only “in exceptional cases

where the trial court’s decision cannot be located within the range of permissible decisions.”

Cavera, 550 F.3d at 189 (internal quotation marks omitted).

        We first address the defendant’s contention that the district court committed procedural

error. Section 3553(c) requires a district court to “state in open court the reasons for its

imposition of the particular sentence, and, if the . . . [sentencing] range exceeds 24 months, the

reason for imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c),

(c)(1). If the district court imposes a non-Guidelines sentence, the “reasons must also be stated

with specificity in a statement of reasons form.” Id. § 3553(c)(2). In interpreting § 3553(c)(1),


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we have held that, though a sentencing judge retains discretion in these matters, he must

demonstrate that he has “‘thoughtfully discharged his statutory obligation, with a degree of care

appropriate to the severity of the punishment ultimately selected.’” United States v. Rosa, 11

F.3d 315, 344 (2d Cir. 1993) (quoting United States v. Chartier, 933 F.2d 111, 117 (2d Cir.

1991)).

          As an initial matter, because the district court imposed a sentence within the Guidelines

range, the district court was not required to state its reasons for the sentence in the written

judgment. See 18 U.S.C. § 3553(c)(2). Thus, the defendant’s contention that the district court

procedurally erred in failing to state its reasons in a “statement of reasons form,” id., is clearly

without merit.

          As to defendant’s argument that the district court did not adequately explain why it chose

to impose the particular Guidelines sentence it did, we conclude that the district court’s

statements sufficiently justify its decision to impose the maximum Guidelines sentence. In

addition to noting that it questioned whether the defendant “was sincere in his efforts to

cooperate,” the district court noted that the defendant was involved “in a very serious, concerted

and dangerous criminal enterprise that could have and may have placed lives in danger.” App.

228-29. It also observed that “[w]ith one more point on the guideline the defendant would be

subject to a guideline range of 360 months to life in prison. So we’re not too far from the max

here under the guidelines.” Id. at 228. It further emphasized the seriousness of defendant’s

crimes when it stated that “[t]he drugs themselves ruined lives and killed people when they are

used and abused,” and that “Congress . . . has said that these crimes are to be treated with the

greatest seriousness because of what they do to the victims of the crimes.” Id. at 229. Finally,


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the district court indicated that “[a]ny crimes that involve the use or availability of guns are

crimes of particularly great danger and significance. I just can’t ignore all of that.” Id. These

statements make clear that the district court believed the defendant’s crimes were extraordinarily

serious and warranted the maximum Guidelines sentence. We thus conclude that the district

court “‘thoughtfully discharged his statutory obligation, with a degree of care appropriate to the

severity of the punishment.’” Rosa, 11 F.3d at 344 (quoting Chartier, 933 F.2d at 117).

       Having concluded that the defendant’s sentence is procedurally reasonable, we turn to

whether the sentence is substantively reasonable. The defendant argues that the 405 month

sentence is excessive given that he is non-violent and has a largely favorable criminal and social

history. Specifically, he notes that he has no criminal history aside from a prior arrest for driving

while intoxicated, he grew up in poverty and was forced into prostitution as a young teenager,

and he has managed to find work and provide for his family. Even if some of these factors may

militate in the defendant’s favor, the district court was entitled to conclude that other factors --

such as the tremendous quantity of drugs involved, the use of firearms, and the defendant’s

involvement as the leader of the operation -- warranted a harsher sentence. Moreover, while

Lerebours-Marte relies on the assertion that the criminal conspiracy was short-lived, there is no

indication that he stopped his illegal activity for any reason other than his arrest. That the

defendant’s co-conspirator received a lesser sentence also does not support an inference that his

sentence was substantively unreasonable. Lerebours-Marte received a two-level enhancement

for his leadership role in the conspiracy, and also had a greater criminal history level and was

responsible for more narcotics. Accordingly, we conclude that the defendant’s Guidelines

sentence falls comfortably “within the range of permissible decisions,” Cavera, 550 F.3d at 190


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(internal quotation marks omitted), and thus reject the defendant’s challenge to the substantive

reasonableness of his sentence.

       We have considered all of the defendant’s remaining arguments and find them to be

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

AFFIRMED.

                                         FOR THE COURT:
                                         CATHERINE O’HAGAN WOLFE, CLERK




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