United States v. Pratheepan Thavaraja , 740 F.3d 253 ( 2014 )

12-4330-cr
United States v. Pratheepan Thavaraja
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2013
(Argued: September 17, 2013 Decided: January 23, 2014)
Docket No. 12-4330-cr
UNITED STATES OF AMERICA,
Appellant,
- against -
PRATHEEPAN THAVARAJA, FKA FNU LNU,
AKA THAMBI SAMPRAS, AKA STEEBAN,
AKA THAVARAJAH PRATHEEPAN, AKA RAJA PRATHEEPAN,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
Before:
WALKER, LIVINGSTON, and CHIN, Circuit Judges.
Appeal by the Government from a judgment of the United States
District Court for the Eastern District of New York (Dearie, J.) sentencing
defendant-appellee to 108 months in prison following his guilty plea to
conspiracy to provide material support to a foreign terrorist organization and
conspiracy to bribe public officials. The Government contends that the sentence
was substantively unreasonable and argues that the district court abused its
discretion in imposing a sentence substantially below the applicable Guidelines
range.
AFFIRMED.
ALEXANDER SOLOMON , Assistant United States
Attorney (Peter A. Norling, Assistant United
States Attorney, on the brief), for Loretta E. Lynch,
United States Attorney for the Eastern District of
New York, Brooklyn, New York, for Appellant.
MICHAEL H. SPORN, Law Office of Michael H. Sporn,
New York, New York, and William J. Stampur,
Hurwitz Stampur & Roth, New York, New York,
for Defendant-Appellee.
CHIN, Circuit Judge:
Defendant-appellee Pratheepan Thavaraja, a Sri Lankan native, was
the principal procurement officer for the Liberation Tigers of Tamil Eelam
("LTTE"), a foreign terrorist organization. He was detained in Indonesia and
extradited to the United States in 2007. In June 2009, he pled guilty to conspiracy
to provide material support to a foreign terrorist organization and conspiracy to
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bribe public officials. The district court (Dearie, J.) sentenced him principally to
108 months' imprisonment, a substantial downward variation from the
Guidelines range. The Government challenges the substantive reasonableness of
the sentence, contending that the sentence was unreasonably low. We affirm.
BACKGROUND
A. The Facts
The facts are largely undisputed and are summarized as follows:
1. The LTTE
Sri Lanka became an independent state in 1948, following the end of
British colonial rule. The Sinhalese Buddhist majority took control, and in the
years since the Sri Lankan government has purportedly engaged in systematic
oppression of the Tamils, a minority group residing primarily in the north and
east parts of the country.
Formed in 1976, the LTTE is a militant separatist group in northern
Sri Lanka that sought to establish an independent Tamil state. It opposed the Sri
Lankan government's alleged persecution of the Tamils. The LTTE engaged in
civil war with the Sri Lankan government, employing a significant military
operation, including an army of some 10,000 soldiers as well as air and naval
forces. The LTTE perpetrated acts of violence in Sri Lanka and India, including
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suicide bombings and assassinations. A military offensive by the Sri Lankan
government in 2009 effectively eradicated the LTTE's presence in Sri Lanka.
As the district court found, the LTTE and the Sri Lankan
government thus were engaged in an "ongoing civil war," with apparent "serious
human rights violations on both sides of the conflict."
In 1997, pursuant to 8 U.S.C. § 1189, the State Department
designated the LTTE a "foreign terrorist organization," after finding that the
LTTE was (1) a "foreign organization," (2) "engaged in terrorist activity," which
(3) "threatens the security of United States nationals or the national security of
the United States." 8 U.S.C. § 1189(a)(1); see also Foreign Terrorist Organizations,
U.S. Dep't of State, www.state.gov/j/ct/rls/other/des/123085.htm (last visited Jan.
23, 2014) (listing LTTE since 1997). The LTTE filed a petition to review this
designation. The Court of Appeals for the D.C. Circuit denied the petition. See
People's Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17 (D.C. Cir. 1999). 1
1 The D.C. Circuit limited its review to determining whether the materials
furnished by the State Department provided "substantial support" for the State
Department's findings that the LTTE was (1) a "foreign organization" that (2) "engaged
in terrorist activity." See 182 F.3d at 24-25. As to the third factor of § 1189, the D.C.
Circuit deferred to the State Department’s determination that the LTTE posed a threat
to U.S. national security, holding that this was a nonjusticiable foreign policy decision of
the Executive Branch. Id. at 23 (citing Chi. & S. Air Lines, Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 111 (1948)).
-4-
2. The Crimes
Pratheepan2 was the principal procurement officer for the LTTE
from 2002 to 2006. At the direction of the LTTE leadership, he purchased at least
$20 million worth of military-grade weapons (including anti-aircraft guns, rocket
launchers, and explosives) and materials used to make suicide bombs. Weapons
with serial numbers matching those in Pratheepan's purchase orders were
discovered among weapon caches confiscated from the LTTE by the Sri Lankan
government.
Pratheepan also played a role in a scheme to bribe State Department
officials to remove the LTTE from the foreign terrorist organization list. He
relayed messages between the LTTE leadership and operatives in the United
States who were arranging the bribe with undercover government agents.
3. Pratheepan's Personal History
Pratheepan was born on November 7, 1974 in a Tamil neighborhood
in Sri Lanka. He was raised during a time of civil war and was regularly
subjected to violence, bombings, and intimidation as a result of the conflict
between the Sri Lankan government and the LTTE. He attended high school in
2
The Government refers to defendant as Thavaraja, but it appears that his
surname is Pratheepan, as both defense counsel and the district court referred to him
below as Mr. Pratheepan. Hence, we refer to him as "Pratheepan."
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his hometown until he was 14-years old, when his school was destroyed. He and
his family were frequently forced to flee their homes to refugee camps during
military attacks. At one point he returned to his village to find that dozens of
people -- including friends and acquaintances -- had been killed and that many
buildings had been destroyed.
At 21-years old, Pratheepan moved to England, where he was
granted political refugee status. He attended school and earned a bachelor's
degree in engineering, a certification in English proficiency, and a teacher's
certificate. He was employed as a college lecturer in Mansfield, England from
2000 to 2002. In 2002, after seven years in England as a political refugee,
Pratheepan returned to his parents' home in Sri Lanka. He was in Jakarta,
Indonesia when he was arrested based on the charges in this case.
While incarcerated at the Metropolitan Detention Center in
Brooklyn, Pratheepan worked in the Education Department teaching math and
other subjects to inmates. In advance of sentencing, inmates who were students
of Pratheepan wrote to the district court expressing their gratitude for his
assistance.
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Pratheepan has no prior criminal convictions. As a citizen of Sri
Lanka who was extradited to this country, he faces likely deportation upon the
completion of his sentence.
B. Proceedings Below
Pratheepan was indicted in the Eastern District of New York in
September 2006 and detained by Indonesian immigration authorities in Jakarta in
January 2007. He was extradited to the United States -- his first time on U.S. soil
-- and made his initial appearance in the Eastern District of New York on January
18, 2007. He pled guilty to a two-count superseding indictment in June 2009.
Pratheepan was sentenced on September 6, 2012. The district court
found that the base offense level under the Sentencing Guidelines was 26, added
2 points "for providing support with intent to commit a violent act," and assessed
a 12-point terrorism enhancement. See United States Sentencing Guidelines
Manual ("U.S.S.G.") § 3A1.4(a). After subtracting 3 points for acceptance of
responsibility, the district court found that the total offense level was 37. The
terrorism enhancement automatically placed Pratheepan in criminal history
category VI, even though he did not have a criminal history. See U.S.S.G. §
3A1.4(b). While the Guidelines range would have been 360 months to life, the
material support count carried a statutory maximum of 180 months, and the
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statutory maximum sentence for the bribery conspiracy count was 60 months.
Thus, the maximum sentence for both counts was 240 months.3
Pratheepan addressed the district court, stating in part as follows:
This has been a long road for me and my family. . . . I [admired] the
United States for the fundamental principles: freedom, justice,
equality, . . . liberty, peace and Democracy. I wanted these
fundamental rights for my people to live as an equal citizen in our
own country in Sri Lanka. . . .
There is not a single day I have not thought about our people
back at home. They are struggling for their freedom and their
future. They still don't have their freedom. I love my motherland
very much. I never felt that I will ever be separated from my
motherland the same way I will never be separated from my mother.
Now, the reality is that I don't know I will ever be able to go back to
my motherland; to feel the freedom or to see my mother, to feel her
love for me. This is a permanent punishment for me for the rest of
my life at this point.
Prior to imposing sentence, the district court noted: "I will not miss
this case because it's given me some of the most difficult and, in many ways,
3 As the total offense level was 37 and the criminal history category was VI, the
court determined that the Guidelines range was 360 months to life. The Guidelines
provide, however, that where there are multiple counts and the Guidelines range
exceeds the highest statutory maximum, the sentences are stacked and run
consecutively "to the extent necessary to produce a combined sentence equal to the total
punishment," U.S.S.G. § 5G1.2(d), that is, the "'punishment determined after all relevant
Guidelines' calculations have been made.'" United States v. Reis, 369 F.3d 143, 149-50 (2d
Cir. 2004) (quoting United States v. McLeod, 251 F.3d 78, 82 (2d Cir. 2001)). Of course,
under the post-Booker advisory Guidelines regime, § 5G1.2(d) is advisory only. United
States v. Kurti, 427 F.3d 159, 164 (2d Cir. 2005). Hence, the Guidelines range here was
240 months -- based on the stacking of the statutory maximums for the two counts of
180 and 60 months, respectively.
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loneliest moments of my career trying to figure out a rational, reasonable
sentence . . . ." The district court explained that this was an unusual case
"because it carries a banner of terrorism and yet involves people who certainly
pose no direct threat to the United States." Nonetheless, the district court
acknowledged, "these folks . . . face severe sanctions here in the United States
because we don't in any way underwrite or care to underwrite terrorist activities
anywhere in the world."
The district court observed that Pratheepan was "motivated" not by
"power" or "self-aggrandizement," but by a desire "to help the Tamil people. . . .
It's beyond me to make sense of the situation in Sri Lanka . . . ." The district court
noted that Pratheepan had already been incarcerated for a "lengthy" period and
separated from his immediate family and girlfriend. It further recognized that
Pratheepan had been "a very model, positive inmate," and that it had received
letters from inmates at the MDC thanking him for the help he had given them.
Finally, the district court noted that Pratheepan faced an uncertain future
because he was likely to be deported but would face possible retribution if
returned to Sri Lanka.
At the same time, the district court acknowledged that Pratheepan's
"function [in procuring arms for the LTTE] was critical and involved . . .
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procurement of deadly merchandise, almost inevitably used to injure, murder,
maim, not only military but civilians."
The district court imposed a term of imprisonment of 108 months for
the material support charge and 60 months for the bribery conspiracy, to run
concurrently. In its amended judgment filed October 2, 2012, the district court
explained the below-Guidelines variance:
[T]he Court is called upon to make a difficult judgment in
fashioning an appropriate and reasonable sentence. The defendant
is a 37 year old, educated Tamil who has never been to the United
States, but was extradited to this country following his January 2007
arrest in Indonesia. He has no criminal record and has been in
custody ever since.
The defendant admits to serving as a principal procurement officer
for the LTTE arranging for the purchase of weaponry and technical
equipment by and through others, many of whom are co-
defendants. Unlike most co-defendants he remained in Sri Lanka
where he lived with his parents and sister whom he has not seen
since the day of his arrest.
Despite his serious criminal conduct, all indications are that this
defendant, like most of his co-defendants, is a person of substance
and decency who was motivated solely to assist the Tamil minority
in Sri Lanka who were engaged in an ongoing civil war that it now
appears involved serious human rights violations on both sides of
the conflict.
...
The defendant has been in custody for almost six years, separated
from his family for the entire period. He has voluntarily served as a
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tutor of other detainees who have written to the Court on the
defendant's behalf expressing their appreciation of his efforts and
their thanks for the successes they have realized as a result. In the
Court's view, supported by judges with whom I have consulted, a
substantial variance is appropriate and reasonable given the full
range of circumstances presented.
This appeal followed.
DISCUSSION
A. Applicable Law
We review a sentence for procedural and substantive reasonableness
under a "deferential abuse-of-discretion standard." Gall v. United States, 552 U.S.
38, 41 (2007); see United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012) ("our
standard is 'reasonableness,' 'a particularly deferential form of abuse-of-
discretion review'") (quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d
Cir. 2008) (en banc)).4 Here, the Government challenges only the substantive
reasonableness of Pratheepan's sentence, arguing that the "more-than-50-percent
reduction from the applicable Guidelines range" was substantively unreasonable.
4 The Government did not object to the substantive reasonableness of Pratheepan's
sentence in the district court. It argues, nonetheless, that we should review the
substantive reasonableness of the sentence for abuse of discretion rather than plain
error. We have not decided whether plain error review applies to an unpreserved
challenge to the substantive reasonableness of a sentence. See United States v.
Verkhoglyad, 516 F.3d 122, 134 (2d Cir. 2008). Nor do we decide the question now, as we
assume for purposes of this appeal that the abuse-of-discretion standard applies.
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Our review for substantive unreasonableness is "particularly
deferential." Broxmeyer, 699 F.3d at 289 (citing Gall, 552 U.S. at 51). The Supreme
Court has made clear that "responsibility for sentencing is placed largely in the
precincts of the district courts." Cavera, 550 F.3d at 191. Hence, "our role in
sentencing appeals is to 'patrol the boundaries of reasonableness,'" United States
v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009) (quoting Cavera, 550 F.3d at 191), with
due respect for the sentencing court's "very wide latitude to decide the proper
degree of punishment for an individual offender and a particular crime," Cavera,
550 F.3d at 188.
We will set aside sentences as substantively unreasonable only in
"exceptional cases where the trial court's decision 'cannot be located within the
range of permissible decisions.'" Id. at 189 (quoting United States v. Rigas, 490
F.3d 208, 238 (2d Cir. 2007)). We will identify "as substantively unreasonable
only those sentences that are so 'shockingly high, shockingly low, or otherwise
unsupportable as a matter of law' that allowing them to stand would 'damage
the administration of justice.'" Broxmeyer, 699 F.3d at 289 (quoting Rigas, 583 F.3d
at 123).
District courts are to use the Guidelines as a "starting point," and
then make an independent sentencing determination, taking into account the
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"nature and circumstances of the offense and the history and characteristics of
the defendant," and all of the statutory factors. 18 U.S.C. § 3553(a); Cavera, 550
F.3d at 188. Sentencing courts are not to "presume that the Guidelines range is
reasonable," and instead they "must make an individualized assessment based on
the facts presented." Gall, 552 U.S. at 50. Where there is a variance from the
Guidelines range, on appellate review, "we may take the degree of variance into
account and consider the extent of a deviation from the Guidelines. . . . A major
departure should be supported by a more significant justification than a minor
one." United States v. Stewart, 590 F.3d 93, 135, 168 (2d Cir. 2009) (quoting Gall,
552 U.S. at 47, 50).
B. Application
The sentence here of 108 months was neither "shockingly low" nor
unsupportable as a matter of law, nor would the administration of justice be
damaged by our allowing the sentence to stand. Applying the particularly
deferential standard for substantive reasonableness review, we conclude that the
district court's decision fell within the range of permissible decisions.
As this case well demonstrates, sentencing is one of the most
difficult -- and important -- responsibilities of a trial judge.5 The experienced and
5
See Mark W. Bennett, Hard Time: Reflections on Visiting Federal Inmates, 94
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respected district judge here characterized this sentencing as presenting "some of
the most difficult and, in many ways, loneliest moments of [his] career." We can
understand why, for many competing considerations came into play.
On the one hand, as the Government argued and the district court
acknowledged, Pratheepan's crimes were certainly grave -- for more than six
years he provided material support to a terrorist organization by purchasing on
its behalf more than $20 million in "deadly merchandise . . . used to injure,
murder, maim, not only military but civilians." The LTTE perpetrated many acts
of violence, and the Executive Branch of our Government has declared it a
terrorist organization.
On the other hand, many mitigating circumstances were presented.
The district court found that Pratheepan was motivated not by "power" or "self-
aggrandizement," but by a desire "to help the Tamil people." His actions had to
be evaluated in context: Pratheepan was caught in an "ongoing civil war," one
with "serious human rights violations on both sides of the conflict." As
Judicature 304, 304 (2011) ("It is an awesome responsibility to take one's liberty away.");
Gerald E. Rosen, The Hard Part of Judging, 34 Suffolk U. L. Rev. 1, 6 (2000) ("Virtually
every week, I receive letters from the families of defendants who are facing sentence, . . .
relating heart-rending stories of serious illness in the family, or financial hardship and
deep emotional loss for the children, parents, spouses and other family members of the
defendant."); Jack B. Weinstein, Does Religion Have a Role in Criminal Sentencing?, 23
Touro L. Rev. 539, 539 (2007) ("Sentencing, that is to say punishment, is perhaps the
most difficult task of a trial court judge.").
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Pratheepan explained at his sentencing, "There is not a single day I have not
thought about our people back at home. They are struggling for their freedom
and their future." While these motivations do not justify or excuse acts of
terrorism, it was not inappropriate for the district court to take Pratheepan's
motivations into account. In addition, Pratheepan did not have a criminal
record, and had accepted full responsibility for his crimes. Moreover, for the
nearly six years that he was incarcerated, Pratheepan was a "model" inmate who
earned the gratitude of other prisoners by his efforts to teach them math and
other subjects. In the end, the district court determined that, despite the "banner
of terrorism," this "37 year old, educated Tamil" was "a person of substance and
decency." He was not in this country voluntarily, but had been separated from
his girlfriend and family after he was arrested in Indonesia and extradited here,
and he faced an uncertain future because of the likelihood he would be deported
after completing his sentence and the fear of reprisal in his home country. There
were other considerations as well.
"The particular weight to be afforded aggravating and mitigating
factors 'is a matter firmly committed to the discretion of the sentencing judge.'"
Broxmeyer, 699 F.3d at 289 (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d
Cir. 2006)). In reviewing for substantive reasonableness, "we do not consider
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what weight we would ourselves have given a particular factor," but instead we
determine whether a factor relied on by a sentencing court "can bear the weight
assigned it under the totality of circumstances in the case." Cavera, 550 F.3d at
191. It is apparent that the district court gave careful consideration to -- and
struggled with -- all of the relevant factors. We conclude that it did not afford
undue weight to any single factor.
We hold that the sentence of 108 months fell within the range of
"permissible decisions." The district judge noted that he had consulted with his
colleagues -- other judges -- and that they supported "a substantial variance."
Pratheepan's sentence is also reasonable when compared to sentences imposed
upon similarly situated defendants. See, e.g., United States v. Stewart, 686 F.3d
156, 159-61 (2d Cir. 2012) (affirming sentence of 120 months for former defense
attorney convicted of conspiring to defraud United States, providing and
concealing material support to a conspiracy to kill and kidnap persons in a
foreign country, and making false statements, where Guidelines range was 360
months to life and initial sentence of 28 months was vacated as being
unreasonably low); United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) (rejecting
Government's appeal of sentences of 240 months, 144 months, and 100 months
for three defendants found guilty of conspiracy to kill and maim persons outside
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United States, conspiracy to provide material support to terrorists in furtherance
of killing of U.S. nationals, and distributing information regarding manufacture
of explosives, destructive devices, and weapons of mass destruction, where
Guidelines range was life in prison). We note also that, of Pratheepan's co-
defendants, four received sentences of time served and one received a sentence
of a year and a day.
We briefly address several of the Government's additional
arguments.
First, the Government contends that the district court's conclusion
that Pratheepan did not pose a direct threat to the United States did not warrant
a lower sentence. The argument is based on the district court's comment at
sentencing that this was an unusual case "because it carries a banner of terrorism
and yet involves people who certainly pose no direct threat to the United States."
The Government cites United States v. Jayyousi, where the Eleventh Circuit
reversed a sentence as unreasonably low in part because the district court based
its sentence on the finding that the defendant's "crimes did not target the United
States." 657 F.3d 1085, 1118 (11th Cir. 2011). Jayyousi is distinguishable, however,
because there the defendant was convicted of violating a statute that specifically
proscribed conduct outside the United States. Id. Hence, it was error for the
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district court to reduce the sentence because the crime did not target the United
States.
Pratheepan, on the other hand, pled guilty to a crime that is defined
in terms of harm directed at the United States. See 8 U.S.C. § 1189 (a)(1)(C)
(providing material support to a foreign terrorist organization whose "terrorist
activity . . . threatens the security of United States nationals or the national
security of the United States"); see 18 U.S.C. § 2339B(a)(1), (g)(6). Thus the district
court did not err in considering the degree of harm that an individual member of
the LTTE caused or intended to cause to the United States. Moreover, although
the district court noted that the case "involved people who certainly pose no
direct threat to the United States," it also made clear that it understood that
individuals who violate our laws are subject to punishment here even if they are
not a direct threat to the United States. The district court observed that "[w]e
don't justify the ends with this kind of means. Indeed, these folks, although they
pose no direct threat, face severe sanctions here in the United States because we
don't in any way underwrite or care to underwrite terrorist activities anywhere
in the world."
Second, the Government avers that the district court "rel[ied] on its
subjective viewpoint [that] the LTTE's goals are somehow less blameworthy than
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those of other designated foreign terrorist organizations." We do not believe this
is a fair characterization of the district court's consideration of the LTTE and its
goals. At sentencing, the district court reported that it had reviewed a State
Department report to Congress on the issue of human rights violations in Sri
Lanka. The district court noted that a "panel of experts" had identified "credible
evidence" of human rights violations "by both the Sri Lankan security forces and
the LTTE," "on both sides of this horrible conflict for an extended period of time."
The district court was not opining that the LTTE was less "blameworthy" than
other terrorist organizations. Instead, the district court was merely trying to
understand Pratheepan's motivations, as it observed: "It's beyond me to make
sense of the situation in Sri Lanka . . . , people against people, tragedy, death,
destruction, apparently on both sides and [here] in an American court we find
our responsibility is to impose judgment on people who are engaged in [il]licit
activities in an effort to help people who were, at least in their view, being
persecuted by other authorities." Indeed, the district court concluded that
Pratheepan "was motivated solely to assist the Tamil minority in Sri Lanka who
were engaged in an ongoing civil war." Pratheepan's motivation was certainly
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relevant to the determination of his punishment, and it was appropriate for the
district court to take his motivation into account.6
Finally, the Government argues that the district court gave improper
weight to Pratheepan's family circumstances and his prospect of future
deportation. The Government notes that family ties are not ordinarily a reason
supporting a downward departure, see U.S.S.G § 5H1.6, and cites cases holding
that it is "improper for the district court to factor deportation in as an 'additional
punishment,'" United States v. Wills, 476 F.3d 103, 107 (2d Cir. 2007). We are not
persuaded that the district court gave improper weight to these factors.
While § 5H1.6 provides that family circumstances are not "ordinarily
relevant" in determining whether a departure is warranted, a sentencing court is
required to consider "the history and characteristics of the defendant" "in
determining the particular sentence to be imposed." 18 U.S.C. § 3553(a)(1); see
also 18 U.S.C. § 3661 ("No limitation shall be placed on the information
6
See, e.g., Stewart, 590 F.3d at 140-41 ("In evaluating culpability, we cannot
discount the relevance of the defendant's motivations -- i.e., whether mercenary, see, e.g.,
18 U.S.C. § 1968 (murder for hire), or born from a commitment to the use of violence.");
United States v. Hansen, 701 F.2d 1078 (2d Cir. 1983) (noting "'the long unbroken
tradition of the criminal law that harsh sanctions should not be imposed where moral
culpability is lacking'") (quoting Lennon v. INS, 527 F.2d 187, 193 (2d Cir. 1975)); accord
Porter v. McCollum, 558 U.S. 30, 41 (2009) (holding that defense counsel failed to provide
effective assistance where "[t]he judge and jury at [defendant's] original sentencing
heard almost nothing that would humanize [defendant] or allow them to gauge his
moral culpability").
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concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence."); Witte v. United States, 515 U.S.
389, 398 (1995) ("Thus, [a]s a general proposition, a sentencing judge may
appropriately conduct an inquiry broad in scope, largely unlimited either as to
the kind of information he may consider, or the source from which it may
come.") (citation and quotation marks omitted) (alteration in original).
Additionally, in the post-Booker advisory Guidelines regime, "the Guidelines
limitations on the use of factors to permit departures are no more binding on
sentencing judges than the calculated Guidelines ranges themselves." United
States v. Jones, 460 F.3d 191, 194 (2d Cir. 2006) (citing, inter alia, § 5H1.6).
Moreover, while the Government characterizes Cavera as merely
"casting doubt on Wills," in fact this Court has repeatedly recognized that Wills
has been abrogated by Kimbrough v. United States, 552 U.S. 85 (2007). See, e.g.,
Stewart, 590 F.3d at 140 (citing Wills for a different proposition and noting that it
had been abrogated by Kimbrough "as recognized in Cavera"); United States v.
Menendez, 600 F.3d 263, 269 (2d Cir. 2010). In determining what sentence is
"sufficient, but not greater than necessary," to serve the needs of justice, 18 U.S.C.
§ 3553(a), a district court may take into account the uncertainties presented by
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the prospect of removal proceedings and the impact deportation will have on the
defendant and his family.
In sum, we hold that this is not the "exceptional" case where the trial
court's decision "'cannot be located within the range of permissible decisions.'"
Cavera, 550 F.3d at 189 (quoting Rigas, 490 F.3d at 238). In light of Pratheepan's
personal history and characteristics, the nature and circumstances of his crimes,
and all of the relevant factors, we conclude that the sentence imposed by the
district court was not substantively unreasonable. Rigas, 490 F.3d at 238. To the
contrary, we conclude that the sentence imposed in this case reflects thoughtful
and principled consideration by a conscientious district judge of all the factors
relevant to an individualized determination of a fair and just sentence.
CONCLUSION
The judgment of the district court is AFFIRMED.
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