     10-5089
     United States v. Dougher


                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of January, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      UNITED STATES OF AMERICA,
14
15                   Appellee,
16
17                   -v.-                                               10-5089
18
19      ANNE FOSTER, JORDAN DOUGHER, AKA RED,
20
21                   Defendants,
22
23      JESSE DOUGHER,
24
25                   Defendant-Appellant.
26
27      - - - - - - - - - - - - - - - - - - - -X


                                                 1
 1   FOR APPELLANT:             Marjorie M. Smith
 2                              Piermont, NY
 3
 4
 5   FOR APPELLEE:              Paul J. Van de Graaf, Gregory L.
 6                              Waples, Assistant United States
 7                              Attorneys, for Tristram J.
 8                              Coffin, United States Attorney,
 9                              District of Vermont,
10                              Burlington, VT
11
12        Appeal from a judgment of the United States District
13   Court for the District of Vermont (Reiss, C.J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the district court’s judgment is AFFIRMED.
17
18        Jesse Dougher appeals from a 145-month sentence of
19   imprisonment entered in the United States District Court for
20   the District of Vermont following his plea of guilty to
21   conspiracy to distribute 100 grams or more of heroin in
22   violation of 21 U.S.C. § 841(a)(1). We assume the parties’
23   familiarity with the underlying facts, the procedural
24   history, and the issues presented for review.
25
26        Dougher argues that the sentence was substantively
27   unreasonable. We review substantive reasonableness under an
28   abuse of discretion standard. Gall v. United States, 552
29   U.S. 38, 51 (2007). We will “set aside a district court’s
30   substantive determination only in exceptional cases where
31   the trial court’s decision cannot be located within the
32   range of permissible decisions.” United States v. Cavera,
33   550 F.3d 180, 189 (2d Cir. 2008) (in banc) (internal
34   quotation marks omitted). The substantive unreasonableness
35   standard thus “provide[s] a backstop for those few cases
36   that, although procedurally correct, would nonetheless
37   damage the administration of justice because the sentence
38   imposed was shockingly high, shockingly low, or otherwise
39   unsupportable as a matter of law.” United States v. Rigas,
40   583 F.3d 108, 123 (2d Cir. 2009).
41
42        The district court did not abuse its discretion, given
43   the duration of the conspiracy, the quantity of drugs
44   involved, and the death caused by heroin supplied by

                                  2
 1   Dougher. Dougher argues that the district court erred by
 2   not explaining why a shorter prison sentence would have been
 3   insufficient; but a court is not required to specifically
 4   discuss consideration of possible alternative sentences.
 5   See United States v. Fleming, 397 F.3d 95, 100 (2d Cir.
 6   2005). Finally, the 145-month sentence is within the
 7   Guidelines range. “[I]n the overwhelming majority of cases,
 8   a Guidelines sentence will fall comfortably within the broad
 9   range of sentences that would be reasonable in the
10   particular circumstances.” United States v. Fernandez, 443
11   F.3d 19, 27 (2d Cir. 2006).
12
13        We have considered Dougher’s remaining arguments and
14   find them to be without merit. For the foregoing reasons,
15   the judgment of the district court is hereby AFFIRMED.
16
17
18
19                              FOR THE COURT:
20                              CATHERINE O’HAGAN WOLFE, CLERK
21
22
23
24




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