United States v. Almonte ( 2011 )

09-3894-cr
USA v. Almonte
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 11th day of May, two thousand eleven.
5
6 PRESENT: WILFRED FEINBERG,
7 ROGER J. MINER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 09-3894-cr
18
19 JOSE FERREIRA ALMONTE, also known as Jose Almonte, also
20 known as Jose Virgilio,
21
22 Defendant-Appellant.
23
24
25
26 FOR APPELLANT: DARRELL B. FIELDS, Federal Defenders of
27 New York, Inc., New York, NY.
28
29 FOR APPELLEE: BURTON T. RYAN, JR., Assistant United
30 States Attorney (David C. James,
31 Assistant United States Attorney, on the
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1 brief) for Loretta E. Lynch, United
2 States Attorney for the Eastern District
3 of New York, Brooklyn, NY.
4
5 Appeal from the United States District Court for the
6 Eastern District of New York (Bianco, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11 Defendant-Appellant Jose Ferreira Almonte appeals from
12 a September 18, 2009 judgment of the United States District
13 Court for the Eastern District of New York (Bianco, J.)
14 sentencing him to ninety-six months’ imprisonment and three
15 years’ conditional supervised release for illegally
16 reentering the United States in violation of 8 U.S.C.
17 § 1326(a), (b). Almonte, through a pro se supplemental
18 letter brief, contends for the first time on appeal that his
19 sentence is substantively unreasonable in light of 18 U.S.C.
20 § 3553(a)’s parsimony clause.1 We assume the parties’
21 familiarity with the underlying facts, the procedural
1
We construe Almonte’s letter challenging the sentence’s
“fairness” as a substantive reasonableness challenge. “It is well
established that the submissions of a pro se litigant must be
construed liberally and interpreted to raise the strongest arguments
that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks
omitted).
In addition to Almonte’s letter, we have also considered a
supplemental letter filed at the Court’s request by Almonte’s counsel
on April 26, 2011.
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1 history, and the issues presented for review.
2 We review the substantive reasonableness of a sentence
3 under an abuse of discretion standard. Gall v. United
4 States, 552 U.S. 38, 51 (2007). In applying that standard,
5 we must “take into account the totality of the
6 circumstances, giving due deference to the sentencing
7 judge’s exercise of discretion, and bearing in mind the
8 institutional advantages of district courts.” United States
9 v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). We
10 will not “substitute our own judgment for the district
11 court’s on the question of what is sufficient to meet the
12 § 3553(a) considerations in any particular case,” and will
13 “set aside a district court’s substantive determination only
14 in exceptional cases where the trial court’s decision
15 ‘cannot be located within the range of permissible
16 decisions.’” Id. at 189 (quoting United States v. Rigas,
17 490 F.3d 208, 238 (2d Cir. 2007)).
18 Here, the district court noted that Almonte is a
19 violent offender who has been convicted of six crimes since
20 2002; weighed the relevant mitigating factors, particularly
21 the sentence’s effect on Almonte’s children; and imposed a
22 within-Guidelines sentence designed to achieve deterrence in
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1 light of Almonte’s present conviction for illegally
2 reentering the United States. This does not present one of
3 the “exceptional cases where the trial court’s decision
4 cannot be located within the range of permissible
5 decisions.” Cavera, 550 F.3d at 189 (internal quotation
6 marks and citation omitted). Accordingly, we find no error
7 in the district court’s decision, let alone plain error.
8 We have reviewed Almonte’s remaining arguments and find
9 them to be without merit. For the foregoing reasons, the
10 judgment of the district court is hereby AFFIRMED.
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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