United States v. Fagan ( 2013 )

12-1157-cr
United States v. Fagan
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of April, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Plaintiff-Appellee,
15
16 -v.- 12-1157-cr
17
18 YASHEEM FAGAN,
19 Defendant-Appellant.
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21
22 FOR APPELLANT: MARJORIE M. SMITH, Law Office of
23 Marjorie M. Smith, Brooklyn, NY.
24
25 FOR APPELLEE: ELIZABETH S. RIKER for Richard
26 S. Hartunian, United States
27 Attorney, Northern District of
28 New York (Carla B. Freedman on
29 the brief), Syracuse, NY.
1
1 Appeal from a judgment of the United States District
2 Court for the Northern District of New York (Hurd, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Yasheem Fagan appeals from the judgment of the United
9 States District Court for the Northern District of New York
10 (Hurd, J.), sentencing him chiefly to 144 months in prison
11 on his plea of guilty to conspiracy to distribute and
12 possess with the intent to distribute more than 28 grams of
13 cocaine base, in violation of 21 U.S.C. §§ 841, 846. We
14 assume the parties’ familiarity with the underlying facts,
15 the procedural history, and the issues presented for review.
16
17 Fagan argues that his sentence is substantively
18 unreasonable. The substantive reasonableness of a sentence
19 is reviewed under a deferential abuse of discretion
20 standard. Gall v. United States, 552 U.S. 38, 51 (2007).
21 “[I]n the overwhelming majority of cases, a Guidelines
22 sentence will fall comfortably within the broad range of
23 sentences that would be reasonable in the particular
24 circumstances. It is therefore difficult to find that a
25 below-Guidelines sentence is unreasonable.” United States
26 v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (per curiam)
27 (quotation marks and internal citation omitted).
28
29 Fagan’s sentence of 144 months is nearly ten years less
30 than the recommended Guidelines minimum with a career
31 offender enhancement. It is not so “shockingly high,
32 shockingly low, or otherwise unsupportable as a matter of
33 law” that allowing it to stand would “damage the
34 administration of justice.” See United States v. Rigas, 583
35 F.3d 108, 123 (2d Cir. 2009).
36
37 Finding no merit in the remaining arguments, the
38 judgment is AFFIRMED.
39
40 FOR THE COURT:
41 CATHERINE O’HAGAN WOLFE, CLERK
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