16-2525

United States v. Del Valle

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

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 5 day of July, two thousand seventeen. th

PRESENT: DENNIS JACOBS,

PIERRE N. LEVAL,

REENA RAGGI,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

-v.- 16-2525

JOSEPH DEL VALLE, 

Defendant-Appellant.

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FOR APPELLANT: BRENDAN WHITE, White & White,

New York, NY. 

FOR APPELLEE: DAMIAN WILLIAMS (Aimee Hector

and Brian R. Blais, on the

brief), for Joon H. Kim, Acting

United States Attorney for the

Southern District of New York.

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Appeal from a judgment of the United States District

Court for the Southern District of New York (Berman, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the judgment of the district court be

AFFIRMED. 

Defendant Joseph Del Valle pleaded guilty to various

fraud charges in the United States District Court for the

Southern District of New York (Berman, J.). Del Valle does

not challenge his conviction; his only argument on appeal is

that his 98-month sentence is substantively unreasonable. 

We assume the parties’ familiarity with the underlying

facts, the procedural history, and the issues presented for

review.

We review sentences for “reasonableness,” which is “a

particularly deferential form of abuse-of-discretion

review.” United States v. Broxmeyer, 699 F.3d 265, 278 (2d

Cir. 2012) (quoting United States v. Cavera, 550 F.3d 180,

188 & n.5 (2d Cir. 2008) (in banc)). We will overturn a

sentence for substantive unreasonableness only if “the trial

court’s decision ‘cannot be located within the range of

permissible decisions.’” Cavera, 550 F.3d at 189 (quoting

United States v. Rigas, 490 F.3d 108, 114 (2d Cir. 2007)).

Del Valle’s within-Guidelines sentence is reasonable. 

Del Valle perpetuated his fraud for approximately ten years

and he misappropriated more than $5 million. To convince

investors to fund his schemes, Del Valle fabricated emails

(purporting to be written by famous chefs and

businesspeople) that expressed support for Del Valle’s

business ventures, and then sent the fraudulent emails to

potential clients to raise money. When some clients began

to be suspicious and requested documentation, Del Valle

falsely assured them that he was having financial statements

prepared that would be sent to the investors shortly. Del

Valle had previously been convicted of criminal possession

of a forged instrument. 

In arguing that his sentence is too onerous, Del Valle

emphasizes that he worked hard in a new business venture so

that he could make money in order to pay restitution, and

that one of the fraud victims continued to conduct business

with him after Del Valle pleaded guilty. Del Valle contends

that this shows his work ethic, business sense, and reformed

character. He also contends that the district court

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inadequately considered his personal characteristics, namely

that he is sixty years old and is devoted to his family.

These contentions are unavailing. The district court

considered all of Del Valle’s arguments, weighed them

against the aggravating factors, and arrived at his 98-month

sentence. In light of the magnitude of Del Valle’s fraud,

the devious means he employed to bilk his victims, and other

factors mentioned by the district court, we cannot say that

Del Valle’s sentence was outside the “range of permissible

decisions.” Cavera, 550 F.3d at 189. 

In particular, we are unpersuaded by Del Valle’s

reliance on his entry into a new business venture with a

former victim in order to recompense his other victims. At

most, Del Valle is arguing that the district court afforded

insufficient weight to this factor, but when “the ultimate

sentence is reasonable . . . 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) (quoting United States v. Fernandez, 443 F.3d 19,

34 (2d Cir. 2006)). Del Valle’s sentence is reasonable, and

we do not disturb it.

For the foregoing reasons, and finding no merit in Del

Valle’s other arguments, we hereby AFFIRM the judgment of

the district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

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