         09-3200-cr(L)
         United States v. Pestana

                                 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 11th day of May, two thousand eleven.
 5
 6       PRESENT: ROGER J. MINER,
 7                JOHN M. WALKER, JR.,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                          09-3200-cr(L), 09-3211-cr(CON)
18
19       VICTOR     MELENDEZ, also known as El Viejo, also known as
20       Flaco,     JORGE BRIONES, also known as Che, JESUS MENA-CANCEL,
21       MANUEL     BAEZ, also known as Manny, also known as Chulo, JUAN
22       CARLOS     BRITO,
23
24                                     Defendants,
25
26       LUIS PESTANA, also known as Lusito, also known as Gordo,
27
28                                     Defendant-Appellant.
29
30
31
32
33
 1   FOR APPELLANT:    JESSE M. SIEGEL, New York, NY.
 2
 3   FOR APPELLEE:     MICHAEL D. MAIMIN, Assistant United
 4                     States Attorney, (Katherine Polk Failla,
 5                     Assistant United States Attorney, on the
 6                     brief), for Preet Bharara, United States
 7                     Attorney for the Southern District of New
 8                     York, New York, NY.
 9
10        Appeal from the United States District Court for the
11   Southern District of New York (Keenan, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

14   AND DECREED that the judgment of the district court be

15   AFFIRMED.

16       Defendant-Appellant Luis Pestana appeals from a July

17   17, 2009 judgment of the United States District Court for

18   the Southern District of New York (Keenan, J.) revoking his

19   supervised release and sentencing him to 12 months’

20   imprisonment for violation of the conditions of his

21   supervised release.   In the same proceeding, the district

22   court also sentenced Pestana to 180 months’ imprisonment,

23   following a guilty plea, for conspiring to distribute

24   cocaine in violation of 21 U.S.C. § 846.   Pestana is

25   foreclosed by an appellate waiver from disputing this latter

26   sentence, but he contends on appeal that his sentence for

27   violating the conditions of his supervised release — which

28   the district court ordered to run consecutively with his


                                   2
1    other sentence — is substantively unreasonable.   We assume

2    the parties’ familiarity with the underlying facts, the

3    procedural history, and the issues presented for review.

4        Pestana concedes that his sentence is not procedurally

5    unreasonable, but suggests that his sentence is

6    substantively unreasonable because the court considered the

7    fact that he was on supervised release when both (1)

8    calculating his criminal history and (2) sentencing Pestana

9    for violations of the terms of his supervised release.

10   Pestana’s dispute is unpersuasive because the Sentencing

11   Guidelines specifically contemplate that such “double

12   counting” will occur.   According to a Policy Statement set

13   forth by the Sentencing Commission in the Sentencing

14   Guidelines:

15            Any term of imprisonment imposed upon the
16            revocation of probation or supervised
17            release shall be ordered to be served
18            consecutively    to    any   sentence    of
19            imprisonment that the defendant is serving,
20            whether or not the sentence of imprisonment
21            being served resulted from the conduct that
22            is the basis of the revocation of probation
23            or supervised release.
24
25   U.S. Sentencing Guidelines Manual § 7B1.3(f) (policy

26   statement).   A consecutive sentence is appropriate because a

27   sentence for violation of supervised release is “not



                                   3
1    intended to be a sanction for [the defendant’s] conduct, but

2    rather for the ‘breach of trust’ committed against the

3    District Court.”   United States v. Sweeney, 90 F.3d 55, 57

4    (2d Cir. 1996), abrogated on other grounds as recognized in

5    United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir.

6    2005).   Accordingly, Pestana’s sentence is not rendered

7    substantively unreasonable based on what Pestana

8    characterizes as the district court’s “double counting” of

9    his violation of the terms of his supervised release.

10       Furthermore, the court sentenced Pestana only to 12

11   months when the applicable range was 24 to 30 months.

12   Particularly in light of this below-range sentence, Pestana

13   has not shown that his sentence is substantively

14   unreasonable.

15       We have considered Pestana’s remaining arguments and

16   find them to be without merit.    For the foregoing reasons,

17   the judgment of the district court is hereby AFFIRMED.

18
19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22




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