08-5686-cr
United States v. Putten
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY O RDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 27 th day of January, two thousand ten.

PRESENT:              JON O. NEWMAN,
                      RALPH K. WINTER,
                      REENA RAGGI,
                                     Circuit Judges.

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UNITED STATES OF AMERICA,

                                         Appellee,

                           v.                                                 No. 08-5686-cr

CARL VAN PUTTEN,

                                          Defendant-Appellant.
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SUBMITTING FOR APPELLANT:                         BRIAN SHEPPARD, New Hyde Park, New
                                                  York.1

SUBMITTING FOR APPELLEE:                          LEV L. DASSIN (Joshua A. Goldberg, Jesse M.
                                                  Furman, Assistant United States Attorneys, on
                                                  the brief), Acting United States Attorney for the
                                                  Southern District of New York, New York,
                                                  New York.

           1
        Jonathan Svetkey, of Watters & Svetkey, LLP, New York, New York, was appointed
as new counsel under the Criminal Justice Act by order dated November 17, 2009.

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          Appeal from the United States District Court for the Southern District of New York

(Peter K. Leisure, Judge).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on November 18, 2008, is AFFIRMED.

          Defendant Carl Van Putten challenges his life sentence, first imposed after his

conviction following a jury trial of murder while engaged in a major narcotics conspiracy and

aiding and abetting that crime, see 21 U.S.C. § 848(e)(1)(A); 18 U.S.C. § 2, and reimposed

after a limited remand from this Court to determine whether the district court was fully aware

of its discretion to deviate from a Guidelines sentence, see United States v. Van Putten, 282

F. App’x 950, 953 (2d Cir. 2008). Defendant argues that the Guidelines sentence was

substantively unreasonable in light of the district court’s failure adequately to consider (1)

defendant’s pre-arrest rehabilitation efforts, (2) lower sentences imposed on others charged

in the same crime, and (3) the court’s obligation to “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes” of sentencing set out in 18 U.S.C. §

3553(a)(2). 18 U.S.C. § 3553(a). We assume the parties’ familiarity with the facts and

record of prior proceedings, which we reference only as necessary to explain our decision to

affirm.

          We review the substantive reasonableness of a district court’s sentence deferentially

and will set the sentence aside “only in exceptional cases where the trial court’s decision

cannot be located within the range of permissible decisions.” United States v. Cavera, 550



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F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted); United States v.

Rigas, 490 F.3d 208, 238 (2d Cir. 2007). This is not such a case. Here, the district court

expressly considered and rejected the very arguments raised on appeal. The court concluded

that the defendant’s relatively brief rehabilitative efforts did not warrant a lower prison term

in light of, inter alia, a series of drug convictions that post-dated the murder and the

defendant’s longtime role as manager of a drug-dealing organization. The court further

found that defendant was not, in fact, similarly situated to others charged in the case, and that

a life sentence was necessary to serve the purposes of § 3553(a) in light of the serious nature

of the murder crime of conviction, defendant’s failure to take responsibility or show remorse

for his homicidal conduct, and defendant’s extensive criminal history. It is not our role to

“consider what weight we would ourselves have given” these factors. United States v.

Cavera, 550 F.3d at 191. We consider only whether the factors identified by the district court

to support a challenged sentence “can bear the weight” assigned to them under the totality

of circumstances in the case. Id. In doing so, we are mindful that “a broad range of

sentences” can be considered substantively reasonable on appellate review of a particular

case. United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006); accord United States v.

Jones, 531 F.3d. 163, 178 (2d Cir. 2008). In this case, we conclude that the factors identified

by the district court can bear the weight of a life sentence.

       Moreover, we remanded the case solely for the purpose of determining whether the

district court fully understood its broad discretion to deviate from a Guidelines sentence, see



                                               3
Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United States, 552 U.S. 85 (2007),

and to resentence the defendant accordingly. The district court answered in the affirmative

and reiterated that the life sentence recommended by the Guidelines comported with its own

exercise of discretion under § 3553.

       On this record, “giving due deference to the sentencing judge’s exercise of discretion,

and bearing in mind the institutional advantages of district courts,” United States v. Cavera,

550 F.3d at 190, we conclude that the sentence was substantively reasonable.

       Accordingly, the judgment of the district court is AFFIRMED.


                                    For the Court:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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