10-4632-cr
United States v. Nasraty

                               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 TO 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of December, two thousand eleven.

PRESENT: JOSEPH M. McLAUGHLIN,
         GUIDO CALABRESI,
         REENA RAGGI,
                   Circuit Judges.
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UNITED STATES,
                                                 Appellee,
                             v.                                                         No. 10-4632-cr

ABDUL RAHIM NASRATY,
                                                 Defendant-Appellant,

CHARLES B. STONE,
                                                 Defendant.*
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APPEARING FOR APPELLANT:                                   HOWARD L. JACOBS, Esq., New York, New
                                                           York.



           *
               The Clerk of the Court is directed to amend the official caption to read as shown
above.
APPEARING FOR APPELLEE:                   LICHA M. NYIENDO, Assistant United States
                                          Attorney (Jo Ann M. Navickas, Assistant
                                          United States Attorney, on the brief), for Loretta
                                          E. Lynch, United States Attorney for the
                                          Eastern District of New York, Brooklyn, New
                                          York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Dora L. Irizarry, Judge).

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

DECREED that the judgment entered on November 12, 2010, is AFFIRMED.

       Defendant Abdul Rahim Nasraty appeals from a judgment sentencing him to 48

months’ imprisonment for conspiracy to distribute and possess with intent to distribute one

or more kilograms of heroin. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Nasraty argues

that his sentence is unreasonable because the district court misidentified or overemphasized

unfavorable factors over favorable factors, specifically, those prompting the government’s

departure motion under U.S.S.G. § 5K1.1. We review the challenged sentence “under a

‘deferential abuse-of-discretion standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d

Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We assume

familiarity with the underlying facts and record of the prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       The district court made no procedural error in sentencing Nasraty. It correctly

calculated Nasraty’s Guidelines range, as Nasraty concedes; acknowledged that the

Guidelines are advisory; heard the parties as to the sentence warranted by 18 U.S.C. §

                                             2
3553(a); and made no clearly erroneous findings of fact. See United States v. Cavera, 550

F.3d at 190 (describing procedural error as including when district court “fails to calculate

the Guidelines range . . . , makes a mistake in its Guidelines calculation, . . . treats the

Guidelines as mandatory, . . . does not consider the § 3553(a) factors, or rests its sentence on

a clearly erroneous finding of fact”). Insofar as Nasraty complains that the district court

referenced crimes such as murder and robbery, the record clearly shows that it was not

ascribing such crimes to Nasraty, but was only explaining why it was not persuaded by his

“everyone does it” argument to defend his own charged and uncharged conduct. Nor do we

identify any procedural error in the extent of the district court’s § 5K1.1 departure. See

United States v. Moe, 65 F.3d 245, 251 (2d Cir. 1995) (holding departure review limited to

whether “departure was made in violation of the law or as a result of a misapplication of the

Guidelines”); see also United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006) (holding

that when defendant challenges procedural or substantive reasonableness of his sentence, “he

effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines

sentence, was ‘imposed in violation of law’” under 18 U.S.C. § 3742(a)); United States v.

Kane, 452 F.3d 140, 144 (2d Cir. 2006) (reaffirming this aspect of Fernandez in challenge

to procedural and substantive reasonableness of below-Guidelines sentence).

       In the absence of any procedural error, our review here is limited to substantive

unreasonableness, which we will not identify except in “exceptional cases” where a district

court’s sentence “cannot be located within the range of permissible decisions.” United States

                                               3
v. Cavera, 550 F.3d at 189 (internal quotation marks omitted). That is not this case. Nasraty

was subject to a 10-year mandatory minimum and a 70 to 87 months Guidelines range. In

sentencing Nasraty to 48 months’ incarceration, the district court considered the substantial

assistance he had given to the government. At the same time, however, the district court

considered less favorable facts falling well within 18 U.S.C. § 3553(a), such as Nasraty’s

under-reporting of income to the IRS before and after his arrest, indicative of both tax and

Medicaid fraud; his failure to remedy that conduct; and his failure truthfully to disclose his

criminal and substance abuse history to prosecutors and probation officers. To the extent the

district court questioned whether Nasraty was still minimizing his income, that concern is

sufficiently grounded in both Nasraty’s past deceit and the cash nature of his earnings to

preclude our identifying abuse. In any event, the record shows that the concern informed

only the district court’s decision as to the extent of sentencing mitigation warranted. The

district court did not use the income concern as a ground to aggravate Nasraty’s sentence.

In sum, although Nasraty disagrees with the significance the district court placed on relevant

sentencing factors, we conclude that they “can bear the weight assigned [them] under the

totality of the circumstances in [this] case.”1 United States v. Cavera, 550 F.3d at 191.


       1
        Nasraty’s more favorable expectations regarding his sentence were not based on the
terms of his plea agreement, in which the government expressly stated that it would neither
recommend a particular sentence to the court nor make any representation to Nasraty
regarding what his ultimate sentence would be. Moreover, at the plea hearing, Nasraty
confirmed that he had never been promised a particular sentence in exchange for his
cooperation and guilty plea.

                                              4
Nasraty’s sentence is therefore substantively reasonable.

       For the foregoing reasons, the judgment of conviction is AFFIRMED.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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