United States v. Reyes-Navarette

10-0202-cr
USA v. Reyes-Navarette
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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 4th day of February, two thousand eleven.
Present: JOHN M. WALKER, JR.,
CHESTER J. STRAUB,
ROBERT A. KATZMANN,
Circuit Judges,
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- No. 10-0202-cr
JOSE REYES-NAVARETTE,
Defendant-Appellant.
____________________________________________________________
For Defendant-Appellant: Colleen P. Cassidy, Federal Defenders of New
York, Inc., Appeals Bureau, New York, N.Y.
For Appellee: Carrie H. Cohen (Michael D. Maimin, of
counsel), Assistant United States Attorney, for
Preet Bharara, United States Attorney for the
Southern District of New York
Appeal from the United States District Court for the Southern District of New York
(Cote, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Jose Reyes-Navarette appeals from a January 15, 2010 judgment of
the United States District Court for the Southern District of New York (Cote, J.) entered
following a plea of guilty to one count of distributing and possessing with intent to distribute 500
grams or more of a substance containing a detectable amount of cocaine, in violation of 21
U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). The district court sentenced Reyes-Navarette
principally to 37 months’ imprisonment. We assume the parties’ familiarity with the underlying
facts, procedural history of this case, and the specification of issues on appeal.
Reyes-Navarette contends that his sentence (1) is procedurally and substantively
unreasonable because the district court erred in rejecting his sentencing manipulation argument
and (2) is substantively unreasonable because the district court placed undue weight on the 18
U.S.C. § 3553(a) factor of deterrence. We review the sentence imposed by the district court for
reasonableness, which “amounts to review for abuse of discretion.” United States v. Cavera, 550
F.3d 180, 187 (2d Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). “A
district court commits procedural error where it fails to calculate the Guidelines range . . . ,
makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory. It also errs
procedurally if it does not consider the § 3553(a) factors, or rests its sentence on a clearly
erroneous finding of fact,” or fails to explain adequately its sentence. Id. at 190 (citing Gall, 552
U.S. at 50) (internal citations omitted). Substantive determinations shall be set aside “only in
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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)). “Generally, ‘[i]f the ultimate sentence is reasonable and the sentencing judge did not
commit procedural error in imposing that sentence, we will not second guess the weight (or lack
thereof) that the judge accorded to a given factor or to a specific argument made pursuant to that
factor.’” United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009) (alteration in original)
(quoting United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006)).
We turn first to Reyes-Navarette’s argument that the government attempted to engage in
sentencing manipulation when the confidential informant pressed Reyes-Navarette to obtain
more than the half a kilogram of cocaine that Reyes-Navarette stated that he had “left.” App’x
58. We have “not yet recognized the doctrine of sentencing manipulation, which occurs ‘when
the government engages in improper conduct that has the effect of increasing the defendant’s
sentence.’” United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007) (quoting United States
v. Gomez, 103 F.3d 249, 256 (2d Cir. 1997)). We have suggested that should this doctrine be
held to be “valid, ‘it would likely require a showing of “outrageous” government conduct.’” Id.(quoting United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000)); see also United States v.
DePierre, 599 F.3d 25, 29 (1st Cir. 2010) (requiring a “very high” threshold to show sentencing
manipulation); United States v. Knox, 573 F.3d 441, 451 (7th Cir. 2009) (requiring “outrageous
conduct solely for the purpose of increasing the defendant’s sentence under the Sentencing
Guidelines” (quoting United States v. Wagner, 467 F.3d 1085, 1090 (7th Cir. 2006)) (internal
quotation mark omitted)).
We need not decide whether to recognize the validity of the sentencing manipulation
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doctrine at this time, because the government’s conduct does not approach the level that would
be required to invoke the doctrine. First, we note that the 500 grams offered by Reyes-Navarette
and the 800 grams requested by the confidential informant would trigger the same mandatory
minimum and Sentencing Guidelines offense level. Second, the confidential informant’s request
for a larger quantity appears to be based on quantities, including 300 grams of lower-quality
cocaine, to which Reyes-Navarette had, in previous conversations, indicated that he had access.
Nothing in the record indicates that the district court failed to understand or consider the
applicable legal standards, the relevant factual circumstances, or defendant’s arguments.
Fernandez, 443 F.3d at 30. Accordingly, the district court committed neither procedural nor
substantive error in declining to grant a variance based on Reyes-Navarette’s sentencing
manipulation argument. Even assuming that the sentencing manipulation doctrine were
available in this Circuit, any procedural error would be harmless, because the district court
explicitly stated that it would impose the same sentence even were it to take the sentencing
manipulation argument into account. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009).
Turning to Reyes-Navarette’s argument that the district court placed undue weight on
deterrence in crafting his sentence, we find this argument to be equally unavailing. The district
court explicitly acknowledged the need to consider the factors under § 3553(a) and expressly
noted and rejected defendant’s other arguments pertaining to his personal circumstances. The
weight given by the district court to specific and general deterrence in this case is exactly the sort
of exercise of discretion that “we will not second guess.” Pope, 554 F.3d at 247 (quoting
Fernandez, 443 F.3d at 34).
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We have considered all of Reyes-Navarette’s remaining arguments and find them to be
without merit. Accordingly, for the foregoing reasons, the judgment of the district court is
hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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