09-3200-cr(L) United States v. Pestana
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 11 thday of May, two thousand eleven. 4 5 PRESENT: ROGER J. MINER, 6 JOHN M. WALKER, JR., 7 RICHARD C. WESLEY, 8 Circuit Judges

. 9 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellee , 15 16 -v.- 09-3200-cr(L), 09-3211-cr(CON) 17 18 VICTOR MELENDEZ, also known as El Viejo, also known as 19 Flaco, JORGE BRIONES , also known as Che, JESUS MENA-CANCEL, 20 MANUEL BAEZ, also known as Manny, also known as Chulo, JUAN 21 CARLOS BRITO, 22 23 Defendants , 24 25 LUIS PESTANA, also known as Lusito, also known as Gordo, 26 27 Defendant-Appellant

. 28 29 30 31 32 332 FOR APPELLANT: JESSE M. SIEGEL, New York, NY. 1 2 FOR APPELLEE: MICHAEL D. MAIMIN, Assistant United 3 States Attorney, (Katherine Polk Failla, 4 Assistant United States Attorney, on the 5 brief ), for Preet Bharara, United States 6 Attorney for the Southern District of New 7 York, New York, NY. 8 9 Appeal from the United States District Court for the 10 Southern District of New York (Keenan, J .). 11 12 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 13

**AND DECREED**that the judgment of the district court be 14

**AFFIRMED**

. 15 Defendant-Appellant Luis Pestana appeals from a July 16 17, 2009 judgment of the United States District Court for 17 the Southern District of New York (Keenan, J. ) revoking his 18 supervised release and sentencing him to 12 months’ 19 imprisonment for violation of the conditions of his 20 supervised release. In the same proceeding, the district 21 court also sentenced Pestana to 180 months’ imprisonment, 22 following a guilty plea, for conspiring to distribute 23 cocaine in violation of 21 U.S.C. § 846. Pestana is 24 foreclosed by an appellate waiver from disputing this latter 25 sentence, but he contends on appeal that his sentence for 26 violating the conditions of his supervised release — which 27 the district court ordered to run consecutively with his 283 other sentence — is substantively unreasonable. We assume 1 the parties’ familiarity with the underlying facts, the 2 procedural history, and the issues presented for review. 3 Pestana concedes that his sentence is not procedurally 4 unreasonable, but suggests that his sentence is 5 substantively unreasonable because the court considered the 6 fact that he was on supervised release when both (1) 7 calculating his criminal history and (2) sentencing Pestana 8 for violations of the terms of his supervised release. 9 Pestana’s dispute is unpersuasive because the Sentencing 10 Guidelines specifically contemplate that such “double 11 counting” will occur. According to a Policy Statement set 12 forth by the Sentencing Commission in the Sentencing 13 Guidelines: 14 Any term of imprisonment imposed upon the 15 revocation of probation or supervised 16 release shall be ordered to be served 17 consecutively to any sentence of 18 imprisonment that the defendant is serving, 19 whether or not the sentence of imprisonment 20 being served resulted from the conduct that 21 is the basis of the revocation of probation 22 or supervised release. 23 24 U.S. Sentencing Guidelines Manual § 7B1.3(f) (policy 25 statement). A consecutive sentence is appropriate because a 26 sentence for violation of supervised release is “not 274 intended to be a sanction for [the defendant’s] conduct, but 1 rather for the ‘breach of trust’ committed against the 2 District Court.” United States v. Sweeney , 90 F.3d 55, 57 3 (2d Cir. 1996), abrogated on other grounds as recognized in 4 United States v. Fleming , 397 F.3d 95, 99 n.5 (2d Cir. 5 2005). Accordingly, Pestana’s sentence is not rendered 6 substantively unreasonable based on what Pestana 7 characterizes as the district court’s “double counting” of 8 his violation of the terms of his supervised release. 9 Furthermore, the court sentenced Pestana only to 12 10 months when the applicable range was 24 to 30 months. 11 Particularly in light of this below-range sentence, Pestana 12 has not shown that his sentence is substantively 13 unreasonable. 14 We have considered Pestana’s remaining arguments and 15 find them to be without merit. For the foregoing reasons, 16 the judgment of the district court is hereby **AFFIRMED**

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18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22