United States v. Zuber ( 2014 )

14-518
United States v. Zuber
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of December, two thousand fourteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 REENA RAGGI,
9 Circuit Judges.
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12 UNITED STATES,
13 Appellee,
14
15 -v.- 14-518
16
17 ERIC P. ZUBER,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: E. M. Allen, III, Stetler, Allen
22 & Kampmann, Burlington, Vermont.
23
24 FOR APPELLEE: William B. Darrow, Wendy L.
25 Fuller and Gregory L. Waples,
26 Assistant United States
27 Attorneys, for Tristram J.
28 Coffin, United States Attorney
29 for the District of Vermont,
30 Burlington, Vermont.
31
1 Appeal from a judgment of the United States District
2 Court for the District of Vermont (Murtha, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Eric Zuber appeals from the judgment of the United
9 States District Court for the District of Vermont (Murtha,
10 J.) sentencing him principally to 78 months’ imprisonment
11 following his guilty plea to conspiring to distribute heroin
12 and cocaine. Zuber contends the district court erred by
13 declining to credit him with acceptance of responsibility,
14 U.S.S.G. § 3E1.1(a), and by declining to consider a non-
15 Guidelines sentence. We assume the parties’ familiarity
16 with the underlying facts, the procedural history, and the
17 issues presented for review.
18
19 The Presentence Report recommended a two-level
20 enhancement for obstruction of justice based upon Zuber’s
21 “attempts to avoid detection and arrest,” including
22 “absconding” from Vermont, and a two-level credit for
23 acceptance of responsibility. The court concluded that the
24 obstruction enhancement was not warranted and declined to
25 credit Zuber with acceptance of responsibility.
26
27 “We review a sentence for reasonableness, which is akin
28 to review for abuse of discretion, under which we consider
29 whether the sentencing judge exceeded the bounds of
30 allowable discretion, committed an error of law in the
31 course of exercising discretion, or made a clearly erroneous
32 finding of fact.” United States v. Leslie, 658 F.3d 140,
33 142 (2d Cir. 2011) (internal quotation marks omitted).
34 Zuber’s objection to the district court’s finding that he
35 was not entitled to acceptance of responsibility credit is
36 limited to plain error review because Zuber failed to object
37 in the district court. See United States v. Wagner-Dano,
38 679 F.3d 83, 90 (2d Cir. 2012).
39
40 The district court’s conclusion that, in light of his
41 flight, Zuber had not “clearly demonstrate[d] acceptance of
42 responsibility” U.S.S.G. § 3E1.1(a), was “well founded,” not
43 “without foundation,” and certainly not plainly erroneous,
44 United States v. Brennan, 395 F.3d 59, 75 (2d Cir. 2005)
45 (internal quotation mark omitted); see also United States v.
46 Zuber, 118 F.3d 101, 105 (2d Cir. 1997) (“[W]e find no basis
47 for disturbing the defendant’s sentence in the fact that the
2
1 court, in explaining its decisions both to increase the
2 defendant’s offense level for obstruction of justice and to
3 deny the defendant’s motion for an acceptance of
4 responsibility departure, noted that the defendant had
5 ‘fle[d] the jurisdiction twice.’”); U.S.S.G. § 3C1.1, cmt.
6 n.5 (“Some types of conduct ordinarily do not warrant
7 application of [the obstruction] adjustment but may warrant
8 a greater sentence within the otherwise applicable guideline
9 range or affect the determination of whether other guideline
10 adjustments apply (e.g., § 3E1.1 (Acceptance of
11 Responsibility)).”).
12
13 The district court was further justified in denying
14 acceptance of responsibility credit because Zuber attempted
15 to minimize his conduct and culpability. For example, while
16 Zuber told the court that “[a]t no time” did he “know that
17 there was a warrant for [his] arrest,” the court concluded
18 that he “certainly knew there was somebody looking” for him.
19 That conclusion was well-founded: Zuber’s attorney
20 contacted the U.S. Attorney’s Office to negotiate his
21 surrender months before his out-of-state arrest. And, in
22 his sentencing memorandum to the court, Zuber claimed that
23 he “exaggerate[d] his importance in the local drug scene” to
24 “convince the officers of his value as an
25 informant/operative” and was therefore faced with an unduly
26 harsh Guidelines range that did not reflect his true
27 culpability. In sum, a “defendant who enters a guilty plea
28 is not automatically entitled to an adjustment for
29 acceptance of responsibility.” United States v. Ortiz, 218
30 F.3d 107, 108 (2d Cir. 2000) (per curiam).
31
32 Zuber argues the district court failed to entertain a
33 non-Guidelines sentence and imposed a substantively
34 unreasonable sentence. Not so. The district court
35 considered a non-Guidelines sentence, but found a Guidelines
36 sentence warranted in light of the seriousness of the
37 offense and the need for deterrence. Indeed, the court
38 specifically considered Zuber’s personal characteristics,
39 and weighed them against the facts that he had already been
40 through a drug treatment program and that this was his
41 “second appearance before the federal court.” And, the 78-
42 month Guidelines sentence was not substantively
43 unreasonable. See generally United States v. Ingram, 721
44 F.3d 35, 37 (2d Cir. 2013) (per curiam).
3
1
2 For the foregoing reasons, and finding no merit in
3 Zuber’s other arguments, we hereby AFFIRM the judgment of
4 the district court.
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
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