10-4504-cr
USA v. Gilliam

                             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 21st day of November, two thousand eleven.

Present: JOHN M. WALKER, JR.,
         ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
                           Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                            -v-                            No. 10-4504-cr

RICHARD GILLIAM, AKA BUJU, AKA MAN,

                            Defendant-Appellant,

HUEYE FLETCHER, AKA HERBIE, AKA GRAY GOOSE, SHAWN SHAW, AKA CHEESE,

                     Defendants.
____________________________________________________________

For Defendant-Appellant:                    RANDALL D. UNGER, Steve Zissou & Assocs., Bayside,
                                            N.Y.

For Appellee:                               DANIEL S. SILVER (Emily Berger, of counsel), Assistant
                                            United States Attorney, for Loretta E. Lynch, United
                                            States Attorney for the Eastern District of New York
       Appeal from the United States District Court for the Eastern District of New York

(Gleeson, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

       Defendant-Appellant Richard Gilliam appeals from an October 26, 2010 judgment of the

United States District Court for the Eastern District of New York (Gleeson, J.), following a

guilty plea, convicting him of drug-related murder in violation of 21 U.S.C. § 848(e)(1)(A) and

sentencing him principally to 528 months’ imprisonment. We assume the parties’ familiarity

with the underlying facts and procedural history of this case.

       Defendant contends that the district court failed to consider the conduct of the victim

under U.S.S.G. § 5K2.10, rendering his sentence procedurally and substantively unreasonable.

Our review of a reasonableness challenge “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 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)). “[W]e do not presume that a

Guidelines-range sentence is reasonable,” but rather “take into account the totality of the


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circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing

in mind the institutional advantages of district courts.” Id. at 190. “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)). “A reviewing court entertains ‘a strong presumption that the sentencing

judge has considered all arguments properly presented to her, unless the record clearly suggests

otherwise.’” United States v. Cossey, 632 F.3d 82, 87 (2d Cir. 2011) (per curiam) (quoting

Fernandez, 443 F.3d at 29).

       Section 5K2.10 permits a below-Guidelines sentence where “the victim’s wrongful

conduct contributed significantly to provoking the offense behavior.” U.S.S.G. § 5K2.10. The

district court is instructed to consider factors including, inter alia, “[t]he danger reasonably

perceived by the defendant,” “[t]he danger actually presented to the defendant by the victim,”

and “[t]he proportionality and reasonableness of the defendant’s response to the victim’s

provocation.” Id.

       Although the district court did not weigh the specific section 5K2.10 factors on the

record, it explicitly rejected defendant’s request for a sentence reduction under section 5K2.10,

concluding that “whatever crimes [the victim] had committed, whatever crime he was about to

commit, in those circumstances that evening [did not have] coming to him anything like what

came to him.” App. 105. As the record shows, at the time of the murder, the victim had been

incapacitated and tortured for hours, and defendant concedes that his response was not


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proportional. Nothing in the record suggests a failure to properly consider § 5K2.10, and given

the presumption of proper consideration accorded to the district court, no procedural error was

committed.

        With respect to the substantive reasonableness of his sentence, defendant argues that

although the district court “paid lip service to the mitigating factors . . . , in the end, it ignored

those factors.” Def.-Appellant Br. 19. However, defendant does not point to any factor

overlooked by the district court, and we will not question the district court’s weighing of those

factors. Pope, 554 F.3d at 246-47.

        We have considered Gilliam’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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