United States v. Gonzalez ( 2011 )

10-1826-cr
United States v. Gonzalez
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 24th day of March, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 PETER W. HALL,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 10-1826-cr
17
18 ESTEBAN GONZALEZ,
19 Defendant-Appellant,
20
21 ALFREDO COLON,
22 Defendant.
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24 FOR APPELLANT: Michael A. Young, New York, New
25 York.
26
27 FOR APPELLEE: John Jay O’Donnell, Katherine
28 Polk Failla, Assistant United
29 States Attorneys, for Preet
30 Bharara, United States Attorney
1 for the Southern District of New
2 York, New York, New York.
3
4 Appeal from a judgment of the United States District
5 Court for the Southern District of New York (Rakoff, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Esteban Gonzalez appeals from an amended judgment of
12 conviction entered on May 6, 2010 in the United States
13 District Court for the Southern District of New York
14 (Rakoff, J.), following a remand from this Court. Gonzalez
15 argues that the district court committed error in ordering
16 that half of his sentence in the instant case be served
17 consecutively to a sentence imposed on him in a separate
18 proceeding. We assume the parties’ familiarity with the
19 underlying facts, the procedural history, and the issues
20 presented for review.
21
22 Under the circumstances of this case, the district
23 judge was authorized to order that Gonzalez’s sentence “be
24 imposed to run concurrently, partially concurrently, or
25 consecutively to the prior undischarged term of imprisonment
26 to achieve a reasonable punishment for the instant offense.”
27 U.S. Sentencing Guidelines § 5G1.3(c); see also 18 U.S.C. §
28 3584(a). The district court ordered that half of the 210-
29 month sentence be served consecutively to a sentence imposed
30 in a separate proceeding. See United States v. Gonzalez,
31 No. 94 Cr. 134 (JSR), 2010 WL 1631496, at *1; see also No.
32 00 Cr. 447 (DLC), D. Ct. Doc. No. 81. This Court will not
33 disturb a district court’s decision as to how a sentence
34 should be served “absent an abuse of discretion.” United
35 States v. Matera, 489 F.3d 115, 124 (2d Cir. 2007) (internal
36 quotation marks omitted).
37
38 The record confirms that the district court understood
39 its obligation to make an independent determination as to
40 consecutive sentencing. The district court fulfilled this
41 obligation by conducting a hearing pursuant to United States
42 v. Fatico, 603 F.2d 1053 (2d Cir. 1979), and reasonably
43 exercised discretion to impose a sentence that is concurrent
44 in part and consecutive in part. See United States v.
45 Velasquez, 136 F.3d 921, 923-24 (2d Cir. 1998). The
46 district court made it clear that it was giving due
2
1 consideration to the factors set out in 18 U.S.C. § 3553(a).
2 See 18 U.S.C. § 3584(b).
3
4 Finding no merit in any of the arguments presented by
5 Gonzalez on appeal, we hereby AFFIRM the judgment of the
6 district court.
7
8
9 FOR THE COURT:
10 CATHERINE O’HAGAN WOLFE, CLERK
11
3