09-3200-cr(L)

United States v. Pestana

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 Daniel Patrick Moynihan

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

New York, on the 11th 4 day of May, two thousand eleven.

5

6 PRESENT: ROGER J. MINER,

7 JOHN M. WALKER, JR.,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

11 

12

13 UNITED STATES OF AMERICA, 

14

15 Appellee,

16

17 -v.- 09-3200-cr(L), 09-3211-cr(CON)

18

19 VICTOR MELENDEZ, also known as El Viejo, also known as

20 Flaco, JORGE BRIONES, also known as Che, JESUS MENA-CANCEL,

21 MANUEL BAEZ, also known as Manny, also known as Chulo, JUAN

22 CARLOS BRITO,

23

24 Defendants,

25

26 LUIS PESTANA, also known as Lusito, also known as Gordo,

27

28 Defendant-Appellant.

29

30 

31

32

33
2

1 FOR APPELLANT: JESSE M. SIEGEL, New York, NY. 

2

3 FOR APPELLEE: MICHAEL D. MAIMIN, Assistant United

4 States Attorney, (Katherine Polk Failla,

5 Assistant United States Attorney, on the

6 brief), for Preet Bharara, United States

7 Attorney for the Southern District of New

8 York, New York, NY. 

9

10 Appeal from the United States District Court for the

11 Southern District of New York (Keenan, J.).

12

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

14 AND DECREED that the judgment of the district court be

15 AFFIRMED. 

16 Defendant-Appellant Luis Pestana appeals from a July

17 17, 2009 judgment of the United States District Court for

18 the Southern District of New York (Keenan, J.) revoking his

19 supervised release and sentencing him to 12 months’

20 imprisonment for violation of the conditions of his

21 supervised release. In the same proceeding, the district

22 court also sentenced Pestana to 180 months’ imprisonment,

23 following a guilty plea, for conspiring to distribute

24 cocaine in violation of 21 U.S.C. § 846. Pestana is

25 foreclosed by an appellate waiver from disputing this latter

26 sentence, but he contends on appeal that his sentence for

27 violating the conditions of his supervised release — which

28 the district court ordered to run consecutively with his
3

1 other sentence — is substantively unreasonable. We assume

2 the parties’ familiarity with the underlying facts, the

3 procedural history, and the issues presented for review.

4 Pestana concedes that his sentence is not procedurally

5 unreasonable, but suggests that his sentence is

6 substantively unreasonable because the court considered the

7 fact that he was on supervised release when both (1)

8 calculating his criminal history and (2) sentencing Pestana

9 for violations of the terms of his supervised release. 

10 Pestana’s dispute is unpersuasive because the Sentencing

11 Guidelines specifically contemplate that such “double

12 counting” will occur. According to a Policy Statement set

13 forth by the Sentencing Commission in the Sentencing

14 Guidelines:

15 Any term of imprisonment imposed upon the

16 revocation of probation or supervised

17 release shall be ordered to be served

18 consecutively to any sentence of

19 imprisonment that the defendant is serving,

20 whether or not the sentence of imprisonment

21 being served resulted from the conduct that

22 is the basis of the revocation of probation

23 or supervised release.

24

25 U.S. Sentencing Guidelines Manual § 7B1.3(f) (policy

26 statement). A consecutive sentence is appropriate because a

27 sentence for violation of supervised release is “not
4

1 intended to be a sanction for [the defendant’s] conduct, but

2 rather for the ‘breach of trust’ committed against the

3 District Court.” United States v. Sweeney, 90 F.3d 55, 57

4 (2d Cir. 1996), abrogated on other grounds as recognized in

5 United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir.

6 2005). Accordingly, Pestana’s sentence is not rendered

7 substantively unreasonable based on what Pestana

8 characterizes as the district court’s “double counting” of

9 his violation of the terms of his supervised release. 

10 Furthermore, the court sentenced Pestana only to 12

11 months when the applicable range was 24 to 30 months. 

12 Particularly in light of this below-range sentence, Pestana

13 has not shown that his sentence is substantively

14 unreasonable. 

15 We have considered Pestana’s remaining arguments and

16 find them to be without merit. For the foregoing reasons,

17 the judgment of the district court is hereby AFFIRMED.

18

19 FOR THE COURT:

20 Catherine O’Hagan Wolfe, Clerk

21

22