13-3937-cr
United States v. Mendez

                                      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, 40 Foley Square, in the City of New
York, on the 19th day of August, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           CHESTER J. STRAUB,
           DEBRA ANN LIVINGSTON,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                              No. 13-3937-cr

ANTONIO MENDEZ, AKA BOO,

                     Defendant-Appellant,

LECHAND FOOTMAN, AKA KB, CARLTON FOOTMAN, AKA
BOOMIE,

                      Defendants.
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FOR DEFENDANT-APPELLANT:                                                  Laurie S. Hershey, Manhasset, NY.

FOR APPELLEE:                                                             James P. Loonam, David C. James, Assistant
                                                                          United States Attorneys, for Loretta E. Lynch,



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                                                         United States Attorney for the Eastern
                                                         District of New York, Brooklyn, NY.


       Appeal from the September 24, 2013, judgment of the United States District Court for the
Eastern District of New York (Allyne R. Ross, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the sentence of the District Court is AFFIRMED.

         Defendant Antonio Mendez appeals the judgment of the District Court insofar as it
imposed a sentence of 24 months’ imprisonment and five years’ supervised release after a plea of
guilty to violating the terms of his supervised release. Mendez contends that the sentence imposed
by the District Court was substantively unreasonable.

                                           BACKGROUND

        In July 2007, Mendez pleaded guilty to conspiring to distribute more than 50 grams of crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. On April 9, 2008, he was
sentenced by Judge Ross to 57 months’ imprisonment and five years’ supervised release.

        Mendez’s term of supervised release commenced on January 3, 2012. Approximately five
months later, on June 20, 2012, Mendez violated his supervised release by engaging in new criminal
conduct. Specifically, he was arrested after an incident in which he shot through the front door of
an apartment, striking a victim in the lower back. Mendez pleaded guilty in New York state court to
attempted criminal possession of a weapon in the third degree. He subsequently pleaded guilty
before the District Court to one violation of his supervised release predicated on his June 2012
offense conduct.

        The United States Probation Office (“Probation Office”) calculated Mendez’s Guidelines
range as four to ten months’ imprisonment. However, the Probation Office recommended a
sentence of 24 months’ imprisonment. At Mendez’s sentencing, Judge Ross imposed a sentence
principally of 24 months’ imprisonment, to be served consecutively with his state court sentence
and to be followed by supervised release for five years.

                                            DISCUSSION

        Mendez contends that the District Court erred by imposing a sentence that was both greater
than the U.S. Sentencing Commission policy statements and greater than necessary to achieve the
statutory goals of sentencing. Mendez additionally argues that the District Court failed to give
sufficient weight to his successful participation in New York State’s “Shock Incarceration Program,”
which teaches discipline, regimentation, and life skills. Specifically, he asserts that the District Court



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erred in “focus[ing] not on that success, but rather on his conduct while on pretrial release following
the original Indictment, and on the Violation conduct itself.” Appellant Br. 11.

         “We review a sentence for substantive reasonableness under a ‘deferential abuse-of-
discretion standard.’” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)).1 As we have explained, a district court is said to err
“substantively” 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) (internal quotation marks omitted). “[W]hen conducting substantive review, we take into
account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of
discretion, and bearing in mind the institutional advantages of district courts.” Id. at 190. In
conducting this review, “we may take the degree of variance into account and consider the extent of
a deviation from the Guidelines. . . . A major departure should be supported by a more significant
justification than a minor one.” Thavaraja, 740 F.3d at 259 (alteration in original) (internal quotation
marks omitted). See generally United States v. Park, --- F.3d ----, No. 13-4142-cr, 2014 WL 3289493, at
*3–5, (2d Cir. July 9, 2014) (explaining substantive unreasonableness).

         The District Court’s 24-month sentence—14 months above the range recommended by the
applicable Sentencing Commission policy statement, but 26 months below the statutory maximum
of five years—is well within the range of permissible decisions in these circumstances. Here, the
District Court appropriately “ma[d]e an individualized assessment based on the facts presented.”
Gall, 552 U.S. at 50. As to Mendez’s argument about his participation in the “Shock Incarceration
Program,” that argument was presented to, and considered by, the District Court. Rather than give
great weight to that participation, Judge Ross concluded that leniency was not warranted in this
“extraordinary case” and that there was a “virtual inevitability of violent recidivism.” App’x 58.
These conclusions were amply supported by the record, and well within the “very wide latitude”
afforded to a sentencing judge “to decide the proper degree of punishment for an individual
offender and a particular crime.” Cavera, 550 F.3d at 188. Considering the totality of the
circumstances and the egregious conduct that constituted Mendez’s violation of supervised release,
we cannot conclude that his sentence constitutes a “manifest injustice,” “shock[s] the conscience,”
or is in any other way substantively unreasonable. United States v. Rigas, 583 F.3d 108, 123–24 (2d
Cir. 2009); see also Park, 2014 WL 3289493, at *4.




          1 We have not yet had occasion to decide “whether plain error review applies to an unpreserved challenge to

the substantive reasonableness of a sentence.” Thavaraja, 740 F.3d at 258 n.4. Although Mendez did not object to the
substantive reasonable of his sentence in the District Court, we assume for the sake of this appeal that abuse-of-
discretion review applies. See United States v. Verkhoglyad, 516 F.3d 122, 134 (2d Cir. 2008).


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                                        CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we AFFIRM the judgment of the District Court, dated September 24, 2013.



                                             FOR THE COURT,
                                             Catherine O’Hagan Wolfe, Clerk of Court




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