     14-1472-cr
     United States v. Nelson

                          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 11th day of March, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                PAMELA K. CHEN,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               14-1472
17
18       DARNELE NELSON,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Leslie E. Scott and Hillary K.
23                                             Green, Federal Public Defender’s
24                                             Office, Western District of New
25                                             York, Buffalo, New York.


                *
               The Honorable Pamela K. Chen, United States District
         Judge for the Eastern District of New York, sitting by
         designation.
 1
 2   FOR APPELLEE:              Monica J. Richards, Assistant
 3                              United States Attorney, for
 4                              William J. Hochul, Jr., United
 5                              States Attorney for the Western
 6                              District of New York, Buffalo,
 7                              New York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Western District of New York (Arcara, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Darnele Nelson appeals from his sentence imposed by the
17   United States District Court for the Western District of New
18   York (Arcara, J.) after he pleaded guilty to possession of
19   unauthorized access devices in violation of 18 U.S.C.
20   § 1029(a)(3). We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.
23
24        Nelson’s challenges to the procedural and substantive
25   reasonableness of his sentence are without merit. At
26   sentencing, the district court indicated that it “considered
27   the advisory range and points raised by counsel, the
28   defendant[, and] the government.” J.A. 154. In addition,
29   the court “carefully considered the factors in 18 U.S.C.
30   § 3553(a)” and concluded that a sentence of 36 months’
31   imprisonment was “sufficient but not greater than necessary
32   to comply with the purposes of sentencing set forth in 18
33   U.S.C. § 3553(a)(2).” Id. The court considered an above-
34   Guidelines sentence, and recognized that it was not bound by
35   the Guidelines, but ultimately imposed a sentence within the
36   Guidelines. Id. at 149, 154.
37
38        Although the sentencing court did not explicitly reject
39   counsel’s argument that a lower sentence was warranted on
40   the ground that the actual loss suffered by Nelson’s victims
41   was less than the loss amount for purposes of sentencing,
42   see U.S.S.G. § 2B1.1, n. 3(F)(i), the record reveals that
43   the court properly considered all of counsel’s arguments.
44   See United States v. Fernandez, 443 F.3d 19, 29-30 (2d Cir.
45   2006) (“[W]e entertain a strong presumption that the
46   sentencing judge has considered all arguments properly
47   presented to her, unless the record clearly suggests

                                  2
 1   otherwise. The presumption is especially forceful when, as
 2   was the case here, the sentencing judge makes abundantly
 3   clear that she has read the relevant submissions and that
 4   she has considered the § 3553(a) factors.”), abrogated on
 5   other grounds by Rita v. United States, 551 U.S. 338 (2007).
 6
 7        “While we have declined to adopt a per se rule, we
 8   recognize that in the overwhelming majority of cases, a
 9   Guidelines sentence will fall comfortably within the broad
10   range of sentences that would be reasonable in the
11   particular circumstances.” United States v. Ingram, 721
12   F.3d 35, 36 (2d Cir. 2013) (per curiam) (internal quotation
13   marks and alterations omitted). The record reveals no
14   exceptional circumstance that renders the district court’s
15   exercise of its discretionary sentencing authority
16   unreasonable.
17
18        For the foregoing reasons, and finding no merit in
19   Nelson’s other arguments, we hereby AFFIRM the judgment of
20   the district court.
21
22                              FOR THE COURT:
23                              CATHERINE O’HAGAN WOLFE, CLERK
24




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