12-45-cr 

United States v. Barquet 

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 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, held at the Daniel Patrick Moynihan 

United States Courthouse, 500 Pearl Street, in the City of New 

York, on the 4th day of December, two thousand twelve. 

PRESENT: DENNY CHIN, 

 RAYMOND J. LOHIER, JR., 

 Circuit Judges, 

 PAUL G. GARDEPHE, 

 District Judge.*

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UNITED STATES OF AMERICA, 

 Appellee, 

 -v.- 12-45-cr 

 

ROBERTO CARLOS BARQUET, 

 Defendant-Appellant. 

 

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FOR APPELLEE: Sarah E. Paul, Brent S. Wible, 

Assistant United States Attorneys, 

for Preet Bharara, United States 

Attorney for the Southern District 

of New York, New York, New York. 

 *

 The Honorable Paul G. Gardephe, of the United States 

District Court for the Southern District of New York, sitting by 

designation. 
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FOR DEFENDANT-APPELLANT: James M. Branden, Law Office of 

James M. Branden, New York, New 

York. 

 Appeal from the United States District Court for the 

Southern District of New York (Hellerstein, J.). 

 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED. 

 Defendant-appellant Roberto Carlos Barquet appeals from 

a judgment entered December 28, 2011, of the United States 

District Court for the Southern District of New York 

(Hellerstein, J.). After Barquet pled guilty to conspiracy to 

distribute heroin pursuant to 21 U.S.C. § 846, the district court 

sentenced him principally to forty-six months' imprisonment. 

Barquet challenges this sentence on both procedural and 

substantive grounds.1 We assume the parties' familiarity with 

the underlying facts, the procedural history of the case, and the 

issues on appeal. 

 We review a sentence imposed by a district court for 

reasonableness. United States v. Cavera, 550 F.3d 180, 189-90 

(2d Cir. 2008) (en banc). "Reasonableness review requires an 

examination of the length of the sentence (substantive 

reasonableness) as well as the procedure employed in arriving at 

the sentence (procedural reasonableness)." United States v. 

Johnson, 567 F.3d 40, 51 (2d Cir. 2009). 

 1

 Barquet's brief frames this appeal as one of 

substantive reasonableness. Because, however, he also alleges 

that the district court failed to properly consider the factors 

outlined in 18 U.S.C. § 3553(a), he is arguably challenging the 

procedural reasonableness of his sentence; we therefore engage in 

a review of procedural reasonableness as well. 
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A. Procedural Reasonableness 

 Barquet first argues that the district court failed to 

give "full consideration" to certain statutory factors, in 

particular, his history and characteristics, including health 

problems, drug and alcohol addiction, and cooperation with the 

government. We disagree. 

 A district court procedurally errs when it does not 

consider the factors outlined in 18 U.S.C. § 3553(a). Cavera, 

550 F.3d at 190; see also Gall v. United States, 552 U.S. 38, 49-

50 (2007). Unless the record suggests otherwise, however, "we 

presume . . . that a sentencing judge has faithfully discharged 

[his] duty to consider the statutory factors." United States v. 

Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). 

 At sentencing, the district court imposed a belowGuidelines sentence to "reflect[] the help that [Barquet] gave 

the government." Sentencing Tr. at 13. Furthermore, it 

specifically acknowledged Barquet's financial difficulties, and 

earlier in the hearing, defense counsel and Barquet both stressed 

that the debt was tied to Barquet's health problems and addiction 

to alcohol and drugs. The court's explanation of its reasoning 

reflects a careful consideration of Barquet's arguments.

 As we do not require "robotic incantations" of the 

§ 3553(a) factors, United States v. Crosby, 397 F.3d 103, 113 (2d 

Cir. 2005) (internal quotation marks omitted), abrogated on other 

grounds by United States v. Fagans, 406 F.3d 138 (2d Cir. 2005), 

and because the record does not suggest otherwise, we conclude 

that the district court properly considered those factors, 
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Fernandez, 443 F.3d at 30, and hold that Barquet's sentence was 

procedurally reasonable. 

B. Substantive Reasonableness 

 Barquet also argues that his forty-six month sentence 

was substantively unreasonable. This challenge also fails. 

 A sentence imposed by the district court is 

substantively unreasonable only if it "cannot be located within 

the range of permissible decisions." Cavera, 550 F.3d at 189 

(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 

2007)). We will set aside sentencing decisions only in 

"exceptional cases," id., as we will not substitute our judgment 

for that of the district court, Fernandez, 443 F.3d at 27. 

 Barquet's sentence was well within the range of 

reasonable sentences. He was convicted of conspiring to 

distribute 998.5 grams of heroin, just shy of the 1000 grams that 

would ordinarily carry a ten-year mandatory minimum sentence. 21 

U.S.C. § 841(b)(1)(A). Moreover, because Barquet qualified for 

the safety valve under § 3553(f), the applicable Guidelines range 

was fifty-seven to seventy-one months, and thus the district 

court's forty-six month sentence was well below the Guidelines 

range. The district court gave appropriate weight to the 

mitigating factors offered by Barquet, but balanced them against 

the seriousness of his conduct. See United States v. Capanelli, 

479 F.3d 163, 165 (2d Cir. 2007) ("[T]he weight given to any 

single factor 'is a matter firmly committed to the discretion of 

the sentencing judge and is beyond our review.'" (quoting 
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Fernandez, 443 F.3d at 32)). We therefore conclude that 

Barquet's sentence was substantively reasonable. 

 We have considered Barquet's remaining arguments and 

conclude they are without merit. For the foregoing reasons, we 

AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk