14-502-cr
United States v. Juan Jose Alvarez de Lugo Azpurua

                           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
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 18th day of March, two thousand fifteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         JOHN M. WALKER, JR.,
         DENNY CHIN,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           v.                                   No. 14-502-cr

JUAN JOSE ALVAREZ DE LUGO AZPURUA,

                     Defendant-Appellant.
________________________________________________

For Appellee:                     Michael S. McGarry and Sandra S. Glover, Assistant United
                                  States Attorneys, for Deirdre M. Daly, United States Attorney
                                  for the District of Connecticut, New Haven, CT.

For Defendant-Appellant:          Tracy Hayes, Assistant Federal Defender, for Terence S. Ward,
                                  Federal Defender for the District of Connecticut, Hartford, CT.


       Appeal from the United States District Court for the District of Connecticut (Eginton, J.).
        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Defendant-Appellant Juan Jose Alvarez de Lugo Azpurua appeals from a judgment

entered on February 4, 2014, by the United States District Court for the District of Connecticut

(Eginton, J.), which sentenced him to 48 months’ imprisonment on one count of wire fraud in

violation of 18 U.S.C. § 1343. On appeal, the defendant argues that his within-Guidelines

sentence was substantively unreasonable because: (1) he is a first time offender who led “an

exemplary life” prior to the commission of this crime, and (2) that the district court and the

government unconsciously ratified that the maximum justifiable sentence was 41 months’

imprisonment (the bottom of the Guideline range). We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

        While there is no presumption that a within-Guidelines sentence is substantively

reasonable, we have held that a sentence is substantively unreasonable “only in exceptional cases

where the trial court’s decision ‘cannot be located within the range of permissible decisions.’”

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v.

Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). We review substantive reasonableness under an abuse-

of-discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007).

        Under this deferential standard, we find neither of the defendant’s arguments convincing.

First, while it is true that the defendant is a first-time offender at age forty-six and prior to the

commission of this crime he lived a successful and law-abiding life, those facts alone do not

compel a low-end or below-Guidelines sentence. To the contrary, we are satisfied that the district

court took these factors into account and balanced them against the serious damage that the

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defendant’s Ponzi scheme caused to the twenty-eight investors whom he defrauded out of more

than $2 million. This conclusion is bolstered by the fact that the court began with a relatively low

within-Guidelines sentence, in part, based on the defendant’s lack of criminal history. We

therefore cannot conclude that this within-Guidelines sentence is “shockingly high, shockingly

low, or otherwise unsupportable as a matter of law.”United States v. Rigas, 583 F.3d 108, 123

(2d Cir. 2009).

       Second, despite the district court’s statement during the plea colloquy that “[y]ou can be

assured I won’t exceed the 41 months,” J.A. 74, we cannot conclude that the sentence was

substantively unreasonable based on the totality of the circumstances. The district court’s

comments, while perhaps imprecise, did not constitute an implicit ratification that 41 months’

imprisonment was the maximum reasonable sentence. To the contrary, the other comments at the

plea colloquy by the judge, the defendant’s defense attorney, and the prosecutor made clear that

41 months’ imprisonment was at the low end of the Guidelines range as calculated at the time the

plea was taken. The text of the plea agreement signed by the defendant also makes clear that he

was aware that the maximum sentence for the wire fraud count was twenty years, and that the

district court would fashion a sentence after considering the 18 U.S.C. § 3553(a) factors. Finally,

this is a challenge to the substantive reasonableness of the sentence and not the procedural

reasonableness thereof. As the defendant concedes, “Judge Eginton would not have been doing

his duty if he had settled on a sentence early on and not considered in full all of the information

presented by the parties. He did his job, but the defendant respectfully suggests that the answer

he arrived at was simply too harsh.”Appellant’s Br. 14. We agree that the district court did its

job, but for the reasons discussed above, cannot conclude that the conclusion that it reached was

too harsh.

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       We have considered the defendant’s remaining arguments and find that they lack merit.

For the reasons given, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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