     09-3323-cr
     United States of America v. Portee



                          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 25 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROGER J. MINER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                         09-3323-cr
17
18       OMAR PORTEE, also known as OG Mack,
19       The Godfather of the Bloods, The Big
20       Homey, The Unknown, Anybody Killer,
21       The Almighty, The Panther, The Big
22       Lion, Omar Porter, Amar Porter, John
23       Varfley, Pierre Johnson, Ron Johnson,
24       and John Johnson,
25                Defendant-Appellant.
26       - - - - - - - - - - - - - - - - - - - -X
27

                                                  1
 1   FOR APPELLANT:    Donna R. Newman, Law Office of Donna R.
 2                     Newman, Esq., New York, NY.
 3
 4   FOR APPELLEE:     Katherine Polk Failla, Assistant United
 5                     States Attorney (Elizabeth F. Maringer,
 6                     Assistant United States Attorney, on the
 7                     brief), for United States Attorney Preet
 8                     Bharara, United States Attorney’s Office
 9                     for the Southern District of New York,
10                     New York, NY.
11
12        Appeal from two orders of the United States District
13   Court for the Southern District of New York (Buchwald, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the orders of the district court be
17   AFFIRMED.
18
19        Defendant-appellant Omar Portee appeals from two orders
20   of the United States District Court for the Southern
21   District of New York (Buchwald, J.) , which declined to
22   resentence Portee after remands from this Court.
23   Specifically, on April 24, 2006, the district court declined
24   to resentence Portee after remand pursuant to United States
25   v. Crosby, 397 F.3d 103 (2d Cir. 2005), and, on July 22,
26   2009, the district court declined to resentence Portee after
27   remand pursuant to United States v. Regalado, 518 F.3d 143
28   (2d Cir. 2008). We assume the parties’ familiarity with the
29   underlying facts, the procedural history, and the issues
30   presented for review.
31
32        Portee argues that in sentencing him the district court
33   procedurally erred by failing to (1) recalculate the
34   advisory Guidelines range, (2) properly consider his
35   background and character, and (3) address his arguments
36   about redundancies in the Guidelines calculation and an
37   unwarranted disparity between his sentence and the sentences
38   of his co-defendants. Portee further argues that (4) his
39   sentence of 50 years is substantively unreasonable.
40   Following review for “reasonableness,” United States v.
41   Williams, 475 F.3d 468, 474 (2d Cir. 2007), Regalado, 518
42   F.3d at 149, which “is akin to review for abuse of
43   discretion,” United States v. Fernandez, 443 F.3d 19, 27 (2d
44   Cir. 2006), we conclude that Portee’s arguments lack merit.
45
46        1. The district court was not required to recalculate
47   Portee’s advisory Guidelines range. See Regalado, 518 F.3d

                                  2
 1   at 149 (adopting the “Crosby mechanism” in which this Court
 2   “remand[s] to give the district court an opportunity to
 3   indicate whether it would have imposed a non-Guidelines
 4   sentence knowing that it had discretion to deviate from the
 5   Guidelines”); Crosby, 397 F.3d at 117 (explaining that a
 6   Crosby remand is “not for the purpose of a required
 7   resentencing, but only for the more limited purpose of
 8   permitting the sentencing judge to determine whether to
 9   resentence, now fully informed of the new sentencing
10   regime”). Moreover, the district court determined that even
11   using Portee’s requested 1:1 crack-to-powder ratio, the
12   advisory Guidelines range remained 360 months to life
13   imprisonment. We find no procedural error regarding this
14   issue.
15
16        2. There is no indication in the record that the
17   district court failed to properly consider Portee’s
18   background and character. See Fernandez, 443 F.3d at 29
19   (“[W]e entertain a strong presumption that the sentencing
20   judge has considered all arguments properly presented to
21   her, unless the record clearly suggests otherwise. This
22   presumption is especially forceful when, as was the case
23   here, the sentencing judge makes abundantly clear that she
24   has read the relevant submissions and that she has
25   considered the § 3553(a) factors.”). At the initial
26   sentencing hearing, the district court observed “the absence
27   of much, if anything, on the positive side of the ledger” to
28   weigh against the factors it relied upon in reaching the 50-
29   year sentence:
30
31            Mr. Portee is the admitted founder of the Bloods,
32            a violent gang which operates both in prison and
33            on the street. I have also considered the amount
34            of violence and lawlessness that Mr. Portee has
35            encouraged and the degree to which he has
36            glorified violence and lawlessness and also the
37            frequency that Mr. Portee involved impressionable
38            young people in his life of crime, the disruption
39            he caused in his own neighborhood, the fact that
40            he himself has lived a life of crime, [and] the
41            pain that his crime has caused others . . . .
42
43   Moreover, the district court expressly noted its
44   consideration of “the history and characteristics of the
45   defendant.” On the Crosby remand, the district court
46   explained that it had “explicitly considered the § 3553(a)
47   factors in determining that [Portee] was not deserving of a

                                  3
 1   sentence in the low end of the Guidelines range,” reiterated
 2   the seriousness of the crimes of conviction, underscored
 3   Portee’s criminal history, and addressed Portee’s youth and
 4   background at the time of certain criminal conduct. The
 5   district court concluded that “[t]here are no facts
 6   presented that alter the original, individualized calculus
 7   reached. Although we are sympathetic to Portee’s health
 8   problems, and understand that his family desires that his
 9   sentence be reduced, this is an inappropriate case for
10   resentencing.” On both the Crosby and Regalado remands, the
11   district court quoted a portion of the sentencing transcript
12   excerpted in part above that expressly addressed Portee’s
13   background and characteristics. We find no procedural error
14   regarding this issue.
15
16        3. Although the district court did not expressly
17   address every argument presented, the sentence imposed is
18   nevertheless reasonable. See Fernandez, 443 F.3d at 30
19   (“[N]o robotic incantations are required to prove the fact
20   of consideration, . . . and we will not conclude that a
21   district judge shirked her obligation to consider the §
22   3553(a) factors simply because she did not discuss each one
23   individually or did not expressly parse or address every
24   argument relating to those factors that the defendant
25   advanced.” (internal quotation marks and citations
26   omitted)). On the Crosby remand, the district court quoted
27   a portion of the sentencing transcript acknowledging that it
28   expressly considered “the traditional and statutory factors
29   of the nature and circumstances of the offense, the history
30   and characteristics of the defendant and the need for a
31   sentence to reflect the seriousness of the offense, to
32   promote respect for the law and provide just punishment for
33   the offense, to afford adequate deterrence to criminal
34   conduct, and to protect the public from further crimes by
35   this defendant.” The district court also “reiterate[d] the
36   specific factors that were considered in arriving at the
37   fifty-year sentence that was imposed,” including “the
38   seriousness of the crimes for which [Portee] was convicted”
39   and “Portee’s criminal history.” Regarding Portee’s
40   unwarranted disparity sub-argument, the district court
41   expressly noted its consideration of “the need for
42   proportionality in Mr. Portee’s sentence and that of his co-
43   defendants.” These explanations and observations reveal
44   that the district court sufficiently “considered the
45   parties’ arguments and ha[d] a reasoned basis for exercising
46   [its] legal decisionmaking authority.” Rita v. United


                                  4
 1   States, 551 U.S. 338, 356 (2007).   We find no procedural
 2   error regarding this issue.
 3
 4        4. The 50-year sentence is substantively reasonable.
 5   The factors on which the district court relied--the
 6   seriousness of the crimes of conviction, deterrence, and
 7   protection of the public--“can bear the weight assigned
 8   [them] under the totality of the circumstances in the case.”
 9   United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008)
10   (en banc). Our review of the record indicates that the
11   district court considered the factors set forth in 18 U.S.C.
12   § 3553(a) and carefully determined that a sentence of 50
13   years--within the Guidelines range of 30 years to life--was
14   appropriate. Accordingly, this is not an “exceptional
15   case[] where the trial court’s decision cannot be located
16   within the range of permissible decisions.” Id. at 189
17   (internal quotation marks omitted). We find no substantive
18   error regarding the 50-year sentence.
19
20        We have considered all of Portee’s contentions on this
21   appeal and have found them to be without merit.
22   Accordingly, the orders of the district court are hereby
23   AFFIRMED.
24
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




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