United States v. Lopez

14-1519-cr
United States v. Lopez
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 1st day of April, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 DENNY CHIN,
8 Circuit Judges,
9
10 ELIZABETH A. WOLFORD,
11 District Judge.*
12
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14 UNITED STATES OF AMERICA,
15 Appellee,
16
17 -v.- 14-1519-cr
18
19 EFRAIN LOPEZ,
20 Defendant-Appellant.
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22
23 FOR APPELLANT: COLLEEN P. CASSIDY, Federal
24 Defenders of New York, Inc.,
*
Judge Elizabeth A. Wolford, of the United States
District Court for the Western District of New York, sitting
by designation.
1 Appeals Bureau, New York, New
2 York.
3
4 FOR APPELLEE: KARL METZNER, Assistant United
5 States Attorney (with Ilan
6 Graff, Assistant United States
7 Attorney, on the brief), for
8 Preet Bharara, United States
9 Attorney for the Southern
10 District of New York, New York,
11 New York.
12
13 Appeal from a judgment of the United States District
14 Court for the Southern District of New York (Seibel, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of conviction of the district
18 court be AFFIRMED.
19
20 Defendant-appellant Efrain Lopez appeals the sentence
21 imposed by the United States District Court for the Southern
22 District of New York (Seibel, J.). He was sentenced to 48
23 months in prison, followed by three years’ supervised
24 release. We assume the parties’ familiarity with the
25 underlying facts, the procedural history, and the issues
26 presented for review.
27
28 Lopez argues that the district court committed
29 procedural error by failing to provide notice of its intent
30 to impose a sentence in excess of the Guidelines, and that
31 the sentence imposed is substantively unreasonable. Review
32 of a district court’s sentencing falls “under a deferential
33 abuse-of-discretion standard,” Gall v. United States, 552
34 U.S. 38, 41 (2007), and encompasses both procedural and
35 substantive components, United States v. Bonilla, 618 F.3d
36 102, 108 (2d Cir. 2010). “Substantive reasonableness review
37 can take place any time following procedural reasonableness
38 review.” Bonilla, 618 F.3d at 109. If satisfied that the
39 sentence is procedurally proper, this Court reviews
40 substantive reasonableness of an above-Guidelines sentence
41 by examining “the reasons given by the district court.”
42 United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013).
43 Generally, however, “if the ultimate sentence is reasonable
44 and the sentencing judge did not commit procedural error in
2
1 imposing that sentence, we will not second guess the weight
2 (or lack thereof) that the judge accorded to a given factor
3 or to a specific argument made pursuant to that factor.”
4 United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009)
5 (internal quotation marks and alterations omitted).
6
7 As to procedural error, Lopez argues that the district
8 court erred by failing to give notice before making an
9 upward departure, a requirement under Federal Rule of
10 Criminal Procedure 32(h). This notice requirement does not
11 extend to the other mechanism for adjusting sentences:
12 variances. Irizarry v. United States, 553 U.S. 708, 714
13 (2008). Despite the court’s use of language typically used
14 to describe a departure, the sentence imposed amounted to a
15 variance from the Guidelines because the district court
16 relied on its power under 18 U.S.C. § 3553(a). See United
17 States v. Keller, 539 F.3d 97, 100 (2d Cir. 2008) (“We see
18 no error whatsoever in the District Court’s use of the
19 framework and terminology of the Guidelines in the course of
20 exercising its variance discretion.”). Accordingly, we find
21 no procedural error.
22
23 As to substantive reasonableness, Lopez argues that,
24 (1) the district court’s policy disagreement with the
25 firearm sentencing Guidelines improperly weighed as a major
26 justification for the sentence, and (2) his convictions for
27 remote conduct, which were excluded from the Criminal
28 History Category calculation, improperly resulted in an
29 increased sentence. Neither argument is persuasive.
30
31 First, Lopez’s contention that the district court’s
32 policy disagreement with the firearm sentencing Guidelines
33 served as a major justification is an overstatement. The
34 district court briefly mentioned its disagreement after a
35 lengthy explanation justifying the above-Guidelines sentence
36 on other grounds. At any rate, a district court may adjust
37 a sentence, “based solely on policy considerations,
38 including disagreements with the Guidelines.” United States
39 v. Dhafir, 577 F.3d 411, 414 (2d Cir. 2009); see also
40 Kimbrough v. United States, 552 U.S. 85, 101 (2007) (“[A]s a
41 general matter, courts may vary from the Guidelines ranges
42 solely on policy considerations, including disagreements
43 with the Guidelines.” (internal quotation marks and
44 alterations omitted)).
3
1 Second, Lopez’s remote convictions were not a basis for
2 the above-Guidelines sentence. The district court
3 identified a number of § 3553(a) factors as justifications
4 for the sentence imposed. Of particular importance, the
5 district court considered that the defendant’s recent
6 convictions were violent. These findings, coupled with the
7 current charges for possession of a modified firearm, served
8 as the district court’s basis for the sentence, which we
9 conclude was substantively reasonable.
10
11 For the foregoing reasons, and finding no merit in
12 Lopez’s other arguments, we hereby AFFIRM the judgment of
13 the district court.
14
15 FOR THE COURT:
16 CATHERINE O’HAGAN WOLFE, CLERK
17
4