United States v. Aime ( 2011 )

10-3015-cr
USA v. Aime
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 Courthouse, 500 Pearl Street, in the City of New York, on the 4th day
of March, two thousand eleven.
Present:
AMALYA L. KEARSE,
ROBERT D. SACK,
ROBERT A. KATZMANN,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 10-3015-cr
BROWNY BIEN AIME,
Defendant-Appellant.
________________________________________________
For Appellee: Brenda K. Sannes, Assistant United States
Attorney (Edward P. Grogan, Assistant United
States Attorney, on the brief), for Richard S.
Hartunian, United States Attorney for the
Northern District of New York, Syracuse, N.Y.
For Defendant-Appellant: Heather Maure, Law Office of Mark Schneider,
Plattsburgh, N.Y.
Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Defendant-Appellant Browny Bien Aime appeals from the July 15, 2010 judgment of the
district court, following a plea of guilty, convicting him of illegal reentry after deportation in
violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced Aime principally to twenty-
one months of incarceration. On appeal, Aime argues that (1) his sentence is procedurally
unreasonable on the ground that the district court disregarded mitigating facts and did not
properly consider the 18 U.S.C. § 3553(a) factors and (2) his sentence was substantively
unreasonable because it was greater than necessary to serve the purposes of sentencing. He
emphasizes that he was not aware of the consequences of reentry into the United States and that
lower sentences are imposed in districts that have fast-track sentencing programs. We assume
the parties’ familiarity with the facts and procedural history of this case.
We review all sentences using a “deferential abuse-of-discretion standard.” United States
v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Our
review has “two components: procedural review and substantive review.” Id. We “first ensure
that the district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). We then review the
substantive reasonableness of the sentence and reverse only when the district court’s sentence
2
“cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal
quotation marks omitted).
Here, the district court expressly considered the § 3553(a) factors and the mitigating
circumstances advanced by Aime. The court addressed, among other things, letters of support
submitted on behalf of Aime, Aime’s acceptance of responsibility and cooperation with the
government, and his claim that he returned to the United States to see his family. The court
considered also Aime’s assertion that he was unaware of the criminal consequences of reentering
the United States and determined that it did not warrant a reduced sentence. The court therefore
considered each of Aime’s contentions and concluded “that the purposes of 18 U.S.C. [§]
3553(a) will be satisfied by a sentence within the guidelines.” App’x 18. In these
circumstances, we find that the district court’s application of the § 3553(a) factors was a proper
exercise of its discretion.
Aime rejoins that his sentence is unreasonable on the ground that defendants in districts
with so-called “fast-track” disposition programs receive lower sentences for the same offense.
Our decision in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006), however, foreclosed such an
argument when it rejected the “false equivalence” between defendants in a fast-track jurisdiction
and defendants in a non-fast-track sentencing district. 461 F.3d at 162; see also United States v.
Hendry, 522 F.3d 239, 242 (2d Cir. 2008) (per curiam) (noting that Mejia “foreclosed” such an
argument under the parsimony clause of § 3553(a)). Because the respective defendants are not
similarly situated, and their sentences are not directly comparable, the district court properly
carried out the directive of the parsimony clause. Thus, we conclude that the sentence the
district court imposed was procedurally sound.
3
Finally, Aime’s argument that his sentence was greater than necessary to serve the
purposes of sentencing is without merit. In view of Aime’s extensive criminal history and the
need to deter Aime from reentering the United States illegally, we conclude that Aime’s twenty-
one-month sentence, in the middle of the advisory Guidelines range, is reasonable.
We have considered Aime’s remaining arguments and find them to be without merit. For
the reasons stated herein, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
4