United States v. Barquet ( 2012 )

12-45-cr
United States v. Barquet
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 TO 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 4th day of December, two thousand twelve.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
PAUL G. GARDEPHE,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
-v.- 12-45-cr
ROBERTO CARLOS BARQUET,
Defendant-Appellant.
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FOR APPELLEE: Sarah E. Paul, Brent S. Wible,
Assistant United States Attorneys,
for Preet Bharara, United States
Attorney for the Southern District
of New York, New York, New York.
*
The Honorable Paul G. Gardephe, of the United States
District Court for the Southern District of New York, sitting by
designation.
FOR DEFENDANT-APPELLANT: James M. Branden, Law Office of
James M. Branden, New York, New
York.
Appeal from the United States District Court for the
Southern District of New York (Hellerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Roberto Carlos Barquet appeals from
a judgment entered December 28, 2011, of the United States
District Court for the Southern District of New York
(Hellerstein, J.). After Barquet pled guilty to conspiracy to
distribute heroin pursuant to 21 U.S.C. § 846, the district court
sentenced him principally to forty-six months' imprisonment.
Barquet challenges this sentence on both procedural and
substantive grounds.1 We assume the parties' familiarity with
the underlying facts, the procedural history of the case, and the
issues on appeal.
We review a sentence imposed by a district court for
reasonableness. United States v. Cavera, 550 F.3d 180, 189-90
(2d Cir. 2008) (en banc). "Reasonableness review requires an
examination of the length of the sentence (substantive
reasonableness) as well as the procedure employed in arriving at
the sentence (procedural reasonableness)." United States v.
Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
1
Barquet's brief frames this appeal as one of
substantive reasonableness. Because, however, he also alleges
that the district court failed to properly consider the factors
outlined in 18 U.S.C. § 3553(a), he is arguably challenging the
procedural reasonableness of his sentence; we therefore engage in
a review of procedural reasonableness as well.
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A. Procedural Reasonableness
Barquet first argues that the district court failed to
give "full consideration" to certain statutory factors, in
particular, his history and characteristics, including health
problems, drug and alcohol addiction, and cooperation with the
government. We disagree.
A district court procedurally errs when it does not
consider the factors outlined in 18 U.S.C. § 3553(a). Cavera,
550 F.3d at 190; see also Gall v. United States, 552 U.S. 38, 49-
50 (2007). Unless the record suggests otherwise, however, "we
presume . . . that a sentencing judge has faithfully discharged
[his] duty to consider the statutory factors." United States v.
Fernandez, 443 F.3d 19, 30 (2d Cir. 2006).
At sentencing, the district court imposed a below-
Guidelines sentence to "reflect[] the help that [Barquet] gave
the government." Sentencing Tr. at 13. Furthermore, it
specifically acknowledged Barquet's financial difficulties, and
earlier in the hearing, defense counsel and Barquet both stressed
that the debt was tied to Barquet's health problems and addiction
to alcohol and drugs. The court's explanation of its reasoning
reflects a careful consideration of Barquet's arguments.
As we do not require "robotic incantations" of the
§ 3553(a) factors, United States v. Crosby, 397 F.3d 103, 113 (2d
Cir. 2005) (internal quotation marks omitted), abrogated on other
grounds by United States v. Fagans, 406 F.3d 138 (2d Cir. 2005),
and because the record does not suggest otherwise, we conclude
that the district court properly considered those factors,
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Fernandez, 443 F.3d at 30, and hold that Barquet's sentence was
procedurally reasonable.
B. Substantive Reasonableness
Barquet also argues that his forty-six month sentence
was substantively unreasonable. This challenge also fails.
A sentence imposed by the district court is
substantively unreasonable only if it "cannot be located within
the range of permissible decisions." Cavera, 550 F.3d at 189(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.
2007)). We will set aside sentencing decisions only in
"exceptional cases," id., as we will not substitute our judgment
for that of the district court, Fernandez, 443 F.3d at 27.
Barquet's sentence was well within the range of
reasonable sentences. He was convicted of conspiring to
distribute 998.5 grams of heroin, just shy of the 1000 grams that
would ordinarily carry a ten-year mandatory minimum sentence. 21
U.S.C. § 841(b)(1)(A). Moreover, because Barquet qualified for
the safety valve under § 3553(f), the applicable Guidelines range
was fifty-seven to seventy-one months, and thus the district
court's forty-six month sentence was well below the Guidelines
range. The district court gave appropriate weight to the
mitigating factors offered by Barquet, but balanced them against
the seriousness of his conduct. See United States v. Capanelli,
479 F.3d 163, 165 (2d Cir. 2007) ("[T]he weight given to any
single factor 'is a matter firmly committed to the discretion of
the sentencing judge and is beyond our review.'" (quoting
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Fernandez, 443 F.3d at 32)). We therefore conclude that
Barquet's sentence was substantively reasonable.
We have considered Barquet's remaining arguments and
conclude they are without merit. For the foregoing reasons, we
AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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