United States v. Mehmeti , 455 F. App'x 52 ( 2012 )

10-4390-cr
United States v. Mehmeti
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.
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 11th day of January, two thousand twelve.
PRESENT: REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges,
MARK R. KRAVITZ,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. No. 10-4390-cr
ENVER MEHMETI, a.k.a. En,
Defendant-Appellant,
LEONEL ARELLANO, a.k.a. Pudge, a.k.a. Pudgie,
FABIAN NASH, a.k.a. Fabe, a.k.a. Ramone Vaughn,
TYRONE GARCIA, a.k.a. Greedy, a.k.a. Slim, a.k.a. Ty,
RAMONE VAUGHN, a.k.a. Ramone Williams, EDWARD
GOTAY, a.k.a. Devane, a.k.a. Eddie, DAMARIS TYESHA
GARCIA, MORRIS FULLER, a.k.a. Power Just, a.k.a. PJ,
HYSAIN KASAJ, a.k.a. Hus,
Defendants.
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*
Judge Mark R. Kravitz of the United States District Court for the District of
Connecticut, sitting by designation.
FOR APPELLANT: John M. Burke, Esq., Brooklyn, New York.
FOR APPELLEE: Shreve Ariail, Susan Corkery, Assistant United States
Attorneys, 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 (I. Leo Glasser, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of conviction entered on June 17, 2010, is AFFIRMED.
Enver Mehmeti, who pleaded guilty to conspiring to distribute and possess with intent
to distribute 50 grams or more of crack cocaine, see 21 U.S.C. §§ 841(b)(1)(A)(iii), 846, and
using and carrying a firearm in relation to that drug-trafficking offense, see 18 U.S.C.
§ 924(c)(1)(A)(i), appeals his below-Guidelines sentence of 300 months’ imprisonment on
the drug count as procedurally and substantively unreasonable.1 We review the challenged
sentence for abuse of discretion, see United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (en banc), assuming the parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Procedural Error
Mehmeti submits that his sentence is rendered unreasonable by procedural error in the
district court’s placing him in criminal history category VI. We are not persuaded.
1
Because Mehmeti does not challenge his consecutive 24-month sentence on his
firearm conviction, we do not consider it further.
2
Insofar as Mehmeti faults the Presentence Investigation Report for including a
disorderly conduct conviction in its criminal history calculation, the matter is of no import
because the district court’s adoption of the Career Offender Guideline, see U.S.S.G. §
4B1.1(b) (2009), placed Mehmeti in criminal history category VI regardless of the disorderly
conduct conviction. To the extent Mehmeti contends that the district court should not have
deemed him a career offender, see id. §§ 4A1.2(a)(2), 4B1.2(c) (2009), this argument is
defeated by his counsel’s sentencing concession that “under the letter of the law, Mr.
Mehmeti is a career offender because of his two prior convictions involving drugs.”
Sentencing Tr. at 9:3-5. See United States v. Jackson, 346 F.3d 22, 24 (2d Cir. 2003). In any
event, the district court did not commit plain error, see United States v. Marino, 654 F.3d
310, 316 (2d Cir. 2011), in counting both Mehmeti’s prior felony drug convictions because
the crimes were separated by an intervening arrest, see U.S.S.G. § 4A1.2(a)(2) (2009); cf.
United States v. Rivers, 50 F.3d 1126, 1128-29 (2d Cir. 1995) (interpreting similar language
in application note 3 to § 4A1.2 of 1994 Guidelines). Nor was the fact of Mehmeti’s prior
felony drug conviction under N.Y. Penal Law § 220.39 altered by subsequent non-retroactive
changes in New York law. See People v. Utsey, 7 N.Y.3d 398, 403-04, 822 N.Y.S.2d 475,
477-78 (2006) (holding 2004 Drug Law Reform Act, 2004 N.Y. Sess. Laws ch. 738, non-
retroactive). Accordingly, no procedural error renders Mehmeti’s sentence unreasonable.
2. Substantive Reasonableness
Mehmeti argues that a 300-month sentence, although a variance from his 360-month-
to-life Guidelines range, was substantively unreasonable under the parsimony clause of 18
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U.S.C. § 3553(a). Mehmeti faults the district court for giving too much weight to his
criminal history and too little to various mitigating circumstances. “[S]ubstantive
reasonableness reduces to a single question: ‘whether the District Judge abused his discretion
in determining that the § 3553(a) factors supported’ the sentence imposed.” United States
v. Jones, 531 F.3d 163, 170 (2d Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 56
(2007)). In answering this question, “we will not substitute our own judgment for the district
court’s”; rather, we will “set aside a district court’s substantive determination only in
exceptional cases where the trial court’s decision cannot be located within the range of
permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks
omitted, emphasis omitted).
That is not this case. The record reveals that the district court carefully considered the
§ 3553(a) factors in light of Mehmeti’s individual circumstances, including his “difficult
childhood,” Sentencing Tr. at 26:23-24, and “incredibly long criminal history,” id. at 35:19.
We are required to “give due deference” to the district court as to the “extent” of variance
warranted by these factors. Gall v. United States, 552 U.S. at 51. We do not consider what
weight we would ourselves give these factors. We consider only “whether the factor, as
explained by the district court, can bear the weight assigned it under the totality of
circumstances in the case.” United States v. Cavera, 550 F.3d at 191. We recognize that the
totality of circumstances will support a “broad range” of sentences. United States v. Jones,
531 F.3d at 174. On this record, we have little difficulty concluding that Mehmeti’s sentence
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falls “within the range of permissible decisions” available to the district court. United States
v. Cavera, 550 F.3d at 191.
For the foregoing reasons, the judgment of conviction is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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