     13-1961
     United States v. Baxter

                          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 April, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-1961
16
17       KEITH RUTHER, AKA KIKI, ERNEST BAKER,
18       AKA SLAY, AKA Q., ERIC BRADLEY, AKA
19       LITTLE E., LEANDRO JONES, AKA GUTTA,
20       MATTHEW LATSON, AKA PONYTAIL, PRINTICE
21       LATSON, AKA CUDA, CEDRIC LEWIS, AKA
22       NEPHEW, JAMAR NELSON, AKA SON SON,
23                Defendants,
24
25       ROBERT BAXTER, AKA LOW,
26                Defendant-Appellant.
27       - - - - - - - - - - - - - - - - - - - -X
28

                                                  1
 1   FOR APPELLANT:              GILBERT R. PEREZ, Rochester, New
 2                               York.
 3
 4   FOR APPELLEE:               JOSEPH J. KARASZEWSKI, for
 5                               William J. Hochul, Jr., United
 6                               States Attorney for the Western
 7                               District of New York, Buffalo,
 8                               New York.
 9
10       Appeal from a judgment of the United States District

11   Court for the Western District of New York (Geraci, J.).

12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the district court be

14   AFFIRMED.

15       Robert Baxter appeals from the judgment of the United

16   States District Court for the Western District of New York

17   (Geraci, J.), convicting him of conspiracy to possess

18   cocaine with intent to distribute controlled substances, in

19   violation of 21 U.S.C. § 846.       On appeal, Baxter challenges

20   the refusal to grant a downward adjustment of the sentence

21   based on his time spent in state custody for a parole

22   violation.   We assume the parties’ familiarity with the

23   underlying facts, the procedural history, and the issues

24   presented for review.

25       “We review a [district court’s] sentence for

26   reasonableness, which is ‘akin to review for abuse of

27   discretion, under which we consider whether the sentencing

                                     2
1    judge exceeded the bounds of allowable discretion, committed

2    an error of law in the course of exercising discretion, or

3    made a clearly erroneous finding of fact.’”   United States

4    v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011) (per curiam)

5    (quoting United States v. Williams, 475 F.3d 468, 474 (2d

6    Cir. 2007)).   “‘[A] refusal to downwardly depart is

7    generally not appealable,’ and . . . review of such a denial

8    will be available only ‘when a sentencing court

9    misapprehended the scope of its authority to depart or the

10   sentence was otherwise illegal.’”   United States v. Stinson,

11   465 F.3d 113, 114 (2d Cir. 2006) (per curiam) (quoting

12   United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005)).

13   Contrary to Baxter’s contention, the district court

14   appropriately considered the application of U.S.S.G. §

15   5G1.3.   The record does not reflect that the district court

16   felt bound to reject Baxter’s request for a downward

17   adjustment; rather, the court stated that the Guidelines do

18   not compel that the request be granted.   Moreover, any

19   expectation Baxter had of obtaining a adjustment was

20   misplaced; no guarantees were made by the court or the

21   prosecution regarding the applicability of § 5G1.3.




                                   3
1        For the foregoing reasons, and finding no merit in

2    Baxter’s other arguments, we hereby AFFIRM the judgment of

3    the district court.

 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
 7
 8
 9
10




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