         08-5018-cr
         USA v. Hernandez



1                                UNITED STATES COURT OF APPEALS
2                                    FOR THE SECOND CIRCUIT
3
 4                                       SUMMARY ORDER
 5
 6   RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
 7   FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 8   PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT
 9   FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN ELECTRONIC
10   DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE
11   A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
12
13              At a stated term of the United States Court of Appeals for the Second Circuit, held at
14       the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
15       York, on the 14th day of May, two thousand ten.
16
17       PRESENT:
18                   GUIDO CALABRESI,
19                   ROBERT A. KATZMAN,
20                   DEBRA ANN LIVINGSTON,
21                               Circuit Judges.
22       __________________________________________
23
24       United States of America,
25
26                          Appellee,
27
28                          v.                                           08-5018-cr
29
30       Gabino Hernandez, also known as “Luis Gambao,”
31
32                   Defendant-Appellant.
33       __________________________________________
34
35       FOR APPELLANT:                 DARRELL B. FIELDS, Federal Defenders of New York, Inc.,
36                                      Appeals Bureau, New York, N.Y.
37
38       FOR APPELLEE:                  JONATHAN B. NEW, MICHAEL A. LEVY, Assistant United
39                                      States Attorneys for PREET BHARARA, United States Attorney
40                                      for the Southern District of New York, New York, N.Y.
41
 1          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Defendant-Appellant Gabino Hernandez appeals from an October 3, 2008 judgment of the

 4   United States District Court for the Southern District of New York (Lynch, J.), sentencing him

 5   principally to 235 months’ imprisonment. We assume the parties’ familiarity with the underlying

 6   facts, procedural history, and the issues on appeal.

 7          From 1995 through 2000, Hernandez served as the leader of an organization that distributed

 8   more than 100 kilograms of cocaine and 1.5 kilograms of cocaine base (“crack cocaine”) in the

 9   vicinity of West 140th Street and Broadway in Manhattan. On July 13, 2000, Hernandez was

10   arrested and three apartments in New York City that he controlled were searched pursuant to a

11   warrant. Powder cocaine, crack cocaine, narcotics-related records, and drug paraphernalia were

12   discovered. Pursuant to a cooperation agreement, Hernandez pled guilty on January 25, 2001 to an

13   information charging one count of conspiracy to distribute and possess with intent to distribute five

14   kilograms and more of cocaine and 50 grams and more of cocaine base, in violation of 21 U.S.C.

15   § 846. Pursuant to the terms of the agreement, Hernandez was released on bail on February 8, 2001.

16          After remaining in contact with the Government for less than two months, Hernandez fled

17   the United States to live first in the Dominican Republic and then in Spain. Seven years later, he was

18   extradited from Spain and, on October 3, 2008, he appeared in district court for sentencing.

19   Hernandez and the Government stipulated to the Sentencing Guidelines calculations in the Probation

20   Department’s Presentence Report and the court, after undertaking its own review of the Guidelines,

21   agreed that Hernandez’s base offense level was 38 and his criminal history category was I, resulting

22   in a Guidelines range of 235 to 293 months’ imprisonment. Although Hernandez argued for a


                                                       2
 1   reduced non-Guidelines sentence, the court sentenced him principally to a term of 235 months’

 2   imprisonment, a sentence at the very bottom of the Guidelines range, to be followed by five years

 3   of supervised release. Hernandez now appeals the portion of his sentence imposing 235 months’

 4   imprisonment, arguing that his sentence was substantively unreasonable.

 5           We review Hernandez’s sentence for reasonableness, but that “does not entail the substitution

 6   of our judgment for that of the sentencing judge.” United States v. Fernandez, 443 F.3d 19, 27 (2d

 7   Cir. 2006). Rather, “the familiar abuse-of-discretion standard of review now applies to appellate

 8   review of sentencing decisions.”        Gall v. United States, 552 U.S. 38, 46 (2007).              This

 9   abuse-of-discretion standard applies whether the sentence imposed falls “inside or outside the

10   Guidelines range.” Id. at 49. In reviewing for substantive reasonableness, we must determine

11   whether the district court’s sentence is located “within the range of permissible decisions.” United

12   States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008). “[W]e take into account the totality of the

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

14   mind the institutional advantages of district courts.” Id. at 190 (citing Rita v. United States, 551 U.S.

15   338, 354 (2007)). While the Section 3553(a) factors “guide appellate courts . . . in determining

16   whether a sentence is unreasonable,” United States v. Booker, 543 U.S. 220, 261 (2005), we will “not

17   substitute our own judgment for the district court’s on the question of what is sufficient to meet the

18   § 3553(a) considerations in any particular case.” Cavera, 550 F.3d at 189. Moreover, “we will not

19   second guess the weight (or lack thereof) that the judge accorded to a given [Section 3553(a)] factor

20   or to a specific argument made pursuant to that factor.” United States v. Pope, 554 F.3d 240, 247

21   (2d Cir. 2009).

22           Hernandez argues that given the circumstances of his case, the 235-month prison sentence


                                                        3
 1   imposed by the district court was longer than necessary to comply with the purposes of Section

 2   3553(a)(2) and was therefore substantively unreasonable. Specifically, he contends that his lack of

 3   a criminal record, his relatively advanced age, his ties to family, and assertions that he has lived a

 4   life free from crime after fleeing the United States to the Dominican Republic and Spain combine

 5   to make it unlikely that he will commit future crimes. This alleged low likelihood of recidivism,

 6   Hernandez asserts, renders his sentence unreasonable. We disagree.

 7          Section 3553(a) instructs a sentencing court to impose a “sentence sufficient, but not greater

 8   than necessary” to comply with the purposes of Section 3553(a)(2), which include the need for the

 9   sentence to reflect the seriousness of the offense, promote respect for the law, provide just

10   punishment for the offense, afford deterrence to criminal conduct, and protect the public from further

11   crimes of the defendant. See 18 U.S.C. § 3553(a)(2). In addition, a sentencing court must consider

12   the nature and circumstances of the offense and the history of the defendant; the kinds of sentences

13   available; the applicable sentencing range set forth in the Guidelines; and the need to avoid

14   unwarranted sentencing disparities. See id. § 3553(a).

15          Here, the record makes clear that the district court specifically considered, among other

16   things, the seriousness of Hernandez’s offense given his involvement as the manager of a wholesale

17   cocaine operation, his flight from the United States and attempt to obstruct justice, the applicable

18   Guidelines sentencing range, the need to treat similarly situated defendants similarly, and the need

19   to impose a sentence sufficient to accomplish the goals of punishment and deterrence. Moreover,

20   the district court considered the very argument that Hernandez now makes on appeal, and concluded

21   that the other purposes of sentencing as enumerated in Section 3553(a) justified the sentence

22   ultimately imposed. In so weighing the Section 3553(a) factors, the court did not abuse its discretion


                                                       4
 1   when it sentenced Hernandez to a 235-month term of imprisonment. In short, this is not one of the

 2   “exceptional cases” where the district court’s decision “cannot be located within the range of

 3   permissible decisions.” Cavera, 550 F.3d at 189.

 4            We have considered the remainder of Hernandez’s claims and determined them to be without

 5   merit.

 6            For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

 7
 8
 9
10                                                FOR THE COURT:
11                                                Catherine O’Hagan Wolfe, Clerk
12




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