United States v. Portee ( 2010 )

09-3323-cr
United States of America v. Portee
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 25 th day of May, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROGER J. MINER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11
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13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 09-3323-cr
17
18 OMAR PORTEE, also known as OG Mack,
19 The Godfather of the Bloods, The Big
20 Homey, The Unknown, Anybody Killer,
21 The Almighty, The Panther, The Big
22 Lion, Omar Porter, Amar Porter, John
23 Varfley, Pierre Johnson, Ron Johnson,
24 and John Johnson,
25 Defendant-Appellant.
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27
1
1 FOR APPELLANT: Donna R. Newman, Law Office of Donna R.
2 Newman, Esq., New York, NY.
3
4 FOR APPELLEE: Katherine Polk Failla, Assistant United
5 States Attorney (Elizabeth F. Maringer,
6 Assistant United States Attorney, on the
7 brief), for United States Attorney Preet
8 Bharara, United States Attorney’s Office
9 for the Southern District of New York,
10 New York, NY.
11
12 Appeal from two orders of the United States District
13 Court for the Southern District of New York (Buchwald, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the orders of the district court be
17 AFFIRMED.
18
19 Defendant-appellant Omar Portee appeals from two orders
20 of the United States District Court for the Southern
21 District of New York (Buchwald, J.) , which declined to
22 resentence Portee after remands from this Court.
23 Specifically, on April 24, 2006, the district court declined
24 to resentence Portee after remand pursuant to United States
25 v. Crosby, 397 F.3d 103 (2d Cir. 2005), and, on July 22,
26 2009, the district court declined to resentence Portee after
27 remand pursuant to United States v. Regalado, 518 F.3d 14328 (2d Cir. 2008). We assume the parties’ familiarity with the
29 underlying facts, the procedural history, and the issues
30 presented for review.
31
32 Portee argues that in sentencing him the district court
33 procedurally erred by failing to (1) recalculate the
34 advisory Guidelines range, (2) properly consider his
35 background and character, and (3) address his arguments
36 about redundancies in the Guidelines calculation and an
37 unwarranted disparity between his sentence and the sentences
38 of his co-defendants. Portee further argues that (4) his
39 sentence of 50 years is substantively unreasonable.
40 Following review for “reasonableness,” United States v.
41 Williams, 475 F.3d 468, 474 (2d Cir. 2007), Regalado, 518
42 F.3d at 149, which “is akin to review for abuse of
43 discretion,” United States v. Fernandez, 443 F.3d 19, 27 (2d
44 Cir. 2006), we conclude that Portee’s arguments lack merit.
45
46 1. The district court was not required to recalculate
47 Portee’s advisory Guidelines range. See Regalado, 518 F.3d
21 at 149 (adopting the “Crosby mechanism” in which this Court
2 “remand[s] to give the district court an opportunity to
3 indicate whether it would have imposed a non-Guidelines
4 sentence knowing that it had discretion to deviate from the
5 Guidelines”); Crosby, 397 F.3d at 117 (explaining that a
6 Crosby remand is “not for the purpose of a required
7 resentencing, but only for the more limited purpose of
8 permitting the sentencing judge to determine whether to
9 resentence, now fully informed of the new sentencing
10 regime”). Moreover, the district court determined that even
11 using Portee’s requested 1:1 crack-to-powder ratio, the
12 advisory Guidelines range remained 360 months to life
13 imprisonment. We find no procedural error regarding this
14 issue.
15
16 2. There is no indication in the record that the
17 district court failed to properly consider Portee’s
18 background and character. See Fernandez, 443 F.3d at 29
19 (“[W]e entertain a strong presumption that the sentencing
20 judge has considered all arguments properly presented to
21 her, unless the record clearly suggests otherwise. This
22 presumption is especially forceful when, as was the case
23 here, the sentencing judge makes abundantly clear that she
24 has read the relevant submissions and that she has
25 considered the § 3553(a) factors.”). At the initial
26 sentencing hearing, the district court observed “the absence
27 of much, if anything, on the positive side of the ledger” to
28 weigh against the factors it relied upon in reaching the 50-
29 year sentence:
30
31 Mr. Portee is the admitted founder of the Bloods,
32 a violent gang which operates both in prison and
33 on the street. I have also considered the amount
34 of violence and lawlessness that Mr. Portee has
35 encouraged and the degree to which he has
36 glorified violence and lawlessness and also the
37 frequency that Mr. Portee involved impressionable
38 young people in his life of crime, the disruption
39 he caused in his own neighborhood, the fact that
40 he himself has lived a life of crime, [and] the
41 pain that his crime has caused others . . . .
42
43 Moreover, the district court expressly noted its
44 consideration of “the history and characteristics of the
45 defendant.” On the Crosby remand, the district court
46 explained that it had “explicitly considered the § 3553(a)
47 factors in determining that [Portee] was not deserving of a
3
1 sentence in the low end of the Guidelines range,” reiterated
2 the seriousness of the crimes of conviction, underscored
3 Portee’s criminal history, and addressed Portee’s youth and
4 background at the time of certain criminal conduct. The
5 district court concluded that “[t]here are no facts
6 presented that alter the original, individualized calculus
7 reached. Although we are sympathetic to Portee’s health
8 problems, and understand that his family desires that his
9 sentence be reduced, this is an inappropriate case for
10 resentencing.” On both the Crosby and Regalado remands, the
11 district court quoted a portion of the sentencing transcript
12 excerpted in part above that expressly addressed Portee’s
13 background and characteristics. We find no procedural error
14 regarding this issue.
15
16 3. Although the district court did not expressly
17 address every argument presented, the sentence imposed is
18 nevertheless reasonable. See Fernandez, 443 F.3d at 30
19 (“[N]o robotic incantations are required to prove the fact
20 of consideration, . . . and we will not conclude that a
21 district judge shirked her obligation to consider the §
22 3553(a) factors simply because she did not discuss each one
23 individually or did not expressly parse or address every
24 argument relating to those factors that the defendant
25 advanced.” (internal quotation marks and citations
26 omitted)). On the Crosby remand, the district court quoted
27 a portion of the sentencing transcript acknowledging that it
28 expressly considered “the traditional and statutory factors
29 of the nature and circumstances of the offense, the history
30 and characteristics of the defendant and the need for a
31 sentence to reflect the seriousness of the offense, to
32 promote respect for the law and provide just punishment for
33 the offense, to afford adequate deterrence to criminal
34 conduct, and to protect the public from further crimes by
35 this defendant.” The district court also “reiterate[d] the
36 specific factors that were considered in arriving at the
37 fifty-year sentence that was imposed,” including “the
38 seriousness of the crimes for which [Portee] was convicted”
39 and “Portee’s criminal history.” Regarding Portee’s
40 unwarranted disparity sub-argument, the district court
41 expressly noted its consideration of “the need for
42 proportionality in Mr. Portee’s sentence and that of his co-
43 defendants.” These explanations and observations reveal
44 that the district court sufficiently “considered the
45 parties’ arguments and ha[d] a reasoned basis for exercising
46 [its] legal decisionmaking authority.” Rita v. United
4
1 States, 551 U.S. 338, 356 (2007). We find no procedural
2 error regarding this issue.
3
4 4. The 50-year sentence is substantively reasonable.
5 The factors on which the district court relied--the
6 seriousness of the crimes of conviction, deterrence, and
7 protection of the public--“can bear the weight assigned
8 [them] under the totality of the circumstances in the case.”
9 United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008)
10 (en banc). Our review of the record indicates that the
11 district court considered the factors set forth in 18 U.S.C.
12 § 3553(a) and carefully determined that a sentence of 50
13 years--within the Guidelines range of 30 years to life--was
14 appropriate. Accordingly, this is not an “exceptional
15 case[] where the trial court’s decision cannot be located
16 within the range of permissible decisions.” Id. at 189
17 (internal quotation marks omitted). We find no substantive
18 error regarding the 50-year sentence.
19
20 We have considered all of Portee’s contentions on this
21 appeal and have found them to be without merit.
22 Accordingly, the orders of the district court are hereby
23 AFFIRMED.
24
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
5