1 9

- 1 850

- c r United States v. Diaz

- Alicea

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 (WI TH THE NOTATION A 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, 1 held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 9 t h d ay of M a y , two thousand twenty

. 3 4 PRESENT: PIERRE N. LEVAL , 5 RAYMOND J. LOHIER, JR. , 6 JOSEPH F. BIANCO , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 UNITED STATES OF AMERICA , 10 11 Appellee , 12 13

v. No. 1 9

- 1 850

- c r 14 15 JOAQUIN DIAZ

- ALICEA , 16 17 Defendant

- Appellant

. ∗ 18

------------------------------------------------------------------ 19

∗ The Clerk of Court is directed to amend the caption as set forth above

.2 FOR DEFENDANT

- APPELLANT : P AUL S

. V OLK , Blodgett, Watts & 1 Volk, P.C., Burlington, VT

. 2 3 FOR APPELL EE : N IKOLAS P. K EREST , Assistant United 4 States Attorney ( Spencer Willig , 5 Gregory L. Waples, Assistant United 6 States Attorneys, on the brief ), for 7 Christina E. Nolan, United States 8 Attorney for the District of Vermont, 9 Burlington, VT

. 10 Appeal from a judgment of the United States District Court for the District 11

of Vermont ( Geoffrey W. Crawford , Chief J udge )

. 12
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 13

AND DECREED that the judgment of the D istrict C ourt is AFFIRMED

. 14
Joaquin Diaz

- Alicea appeals from a judgment of conviction entered on 15

June 20, 2019 by the United States District Court for the District of Vermont 16
( Crawford , C. J. ) after Diaz

- Alicea pleaded guilty to one count of conspiracy to 17

distribute heroin and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)

– 18
(C), 846

. The District Court sentenced Diaz

- Alicea principally to 120 months ’ 19
imprisonment . On appeal, Diaz

- Alicea argues that his sentenc e was both 20
procedurally and substantively unreasonable. We assume the parties’ 213 familiarity with the underlying facts and the record of prior proceedings, to 1
which we refer only as necessary to explain our decision to affirm

. 2

We review a district court’s sentencing decision for procedural and 3

substantive reasonableness “ under a deferential abuse

- of

- discretion standard

. ” 4

United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. 5

United States , 552 U.S. 3 8, 41 (2007))

. 1 A sentencing court makes a procedural 6

error if it bases a sentence on a “mistake in its Guidelines calculation,” “does not 7
consider the [18 U.S.C.] § 3553(a) factors,” “rests its sentence on a clearly 8
erroneous finding of fact,” or “fails adequately to explain its chosen sentence,” 9
including “any deviation from the Guidelines range.” Id. (quotation marks 10
omitted). A sentence is substantively unreasonable if it “cannot be located 11
within the range of permissible decisions.” Id. (quotation marks omitted). 12

Diaz

- Alicea first asserts that the District Court abused its discretion by 13
initially rejecting as disproportionately harsh the 18:1 powder

- to

- crack

- cocaine 14

1 The parties dispute whether Diaz

- Alicea adequately preserved his procedural reasonableness arguments and whether an abuse

- of

- discretion or plain

- error standard should apply. We need not decide this question because we reject Diaz

- Alicea ’s challenge even under the more favorable abuse

- of

- discretion standard.4 ratio of the applicable Guideline , but then fail ing to recalculate the Guidelines 1
range based on a 1:1 ratio. See Spears v. United States , 555 U.S. 261, 265

– 66 2
(2009)

. We disagree . A district court may reject the powder

- to

- crack

- cocaine 3

ratio , deviate from the Guidelines range , and thus “ necessarily

. . . adop t []

. . . a 4
replacement ratio

. ” I d. at 265

. I n doing so , the court is not compelled to 5

recalculat e the applicable range or to use any particular replacement ratio

. S ee 6

id. (noting that it may be “appropriate for the District Court . . . not to specify 7
what ratio it was using but merely to proceed with § 3553(a) analysis” (quotation 8
marks omitted) ); United States v. Regalado , 518 F.3d 143, 149 (2d Cir. 2008). In 9

this case, the District Court adequately explained its decision to vary downward 10

and to impose a sentence below the lower end of the advisory range based on its 11
policy disagreement . It was not further required to attempt “an exact 12

mathematical calculation” to do so. Suppl. App’x 46. 13

Diaz

- Alicea also contends that the District Court committed procedural 14

error when , in applying the factors listed in § 3553(a), it found that Diaz

- Alicea 15

was a leader of the conspiracy after declining to impose a two

- level leadership 16
enhancement under U.S.S.G. § 3B1.1

. See U.S.S.G. § 3B1.1 cmt. 4. We disagre e 175 that the District Court’s refusal to impose the Guidelines enhancement precluded 1
it from considering Diaz

- Alicea’s leadership role under § 3553(a). Although 2

t here may not have been enough i n the record to find by a preponderance of the 3

evidence that Diaz

- Alicea played a leadership role justify ing a Guidelines 4

enhancement , see United States v. Pristell , 941 F.3d 44, 49

– 50 (2d Cir. 2019) , there 5

was record evidence support ing the District Court’s view , expressed during its 6
consideration of the § 3553(a) factors, that Diaz

- Alicea serv ed some leadership 7

role , s ee United States v. Wernick , 691 F.3d 108, 118 (2d Cir. 2012) (emphasizing a 8
district court’s “discretion to consider a broad range of information” in the 9
§ 3553(a) analysis) ; see also United States v. Alcius , 952 F.3d 83, 87

– 88 (2d Cir. 10
2020)

. The Presentence Report in particular provided some evidence that Diaz

11

Alicea w as one of the leaders of the conspiracy and helped control significant 12
quantities of drugs, cash, and firearms. T he District Court’s determination 13

under § 3553(a) that Diaz

- Alicea played “ a n important part [in] the leadership of 14
the organization” was therefore not clearly erroneous. Suppl. App’x 45. 15
We also reject Diaz

- Alicea’s argument that his 120

- month sentence was 16
substantively unreasonable because it was “ disproportionate ” to the sentences of 176 certain co

- defendants. Appellant ’s Br. 11

– 12

. A sentencing court is not 1
required to consider sentencing disparities among co

- defendants. See United 2

States v. Ghailani , 733 F.3d 29, 55 (2d Cir. 2013). I n any event, the District Court 3

consider ed the relative culpability of Diaz

- Alicea and his co

- defendants , and it 4
reasonably concluded that Diaz

- Alicea’s more extensive criminal history and 5

histor y of violence supported a longer sentence. We therefore reject Diaz

6
Alicea’s argument. 7

We have considered Diaz

- Alicea’s remaining arguments and conclude that 8
they are without merit. For the foregoing reasons, the judgment of the District 9

Court is AFFIRM ED

. 10

FOR THE COURT: 11 Catherine O ’ Hagan Wolfe, Clerk of Court 12