1 14-4707-cr United States v. Guzman



### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 22 nd day of November, two thousand sixteen.
Present: A MALYA L. K EARSE , R ICHARD C. W ESLEY , D EBRA A NN L IVINGSTON , Circuit Judges ,

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 14-4707-cr A DALBERTO A RIEL G UZMAN , aka Gringo, Defendant-Appellant

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_____________________________________ For Defendant-Appellant: M ALVINA N ATHANSON , New York, N.Y. For Defendant-Appellee: J OHN J. D URHAM , Assistant United States Attorney (Susan Corkery, Carrie N. Capwell, Raymond A. Tierney, Assistant United States Attorneys, on the brief ), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, N.Y.2 Appeal from the judgment of the United States District Court for the Eastern District of New York (Bianco, J. ), entered December 19, 2014, sentencing Defendant to a term of imprisonment of life plus 35 years. UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Following a jury trial, Defendant-Appellant Adalberto Ariel Guzman was convicted of one count of conspiracy to murder, 18 U.S.C. § 1959(a)(5), two counts of murder, 18 U.S.C. § 1959(a)(1), two counts of using a firear m during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii), and two counts of causing the death of a nother through the use of a firearm, 18 U.S.C. § 924(j)(1). Though Defendant was 17 year s old at the time of the conduct at issue, the district court imposed a sent ence pursuant to the Sentencing Gu idelines of life plus 35 years’ imprisonment. Guzman now challenges that se ntence as substantively unreasonable, arguing that his adolescence warranted a sentence of le ss than life because of the possibility of rehabilitation. We review the reasonableness of the sentence imposed by the district court for abuse of discretion. United States v. Verkhoglyad , 516 F.3d 122, 127 (2d Cir. 2008). The substantive reasonableness inquiry focuses on the sentence imposed in light of the district court’s consideration of the factors identified in 18 U.S.C. § 3553(a). Id . We will set aside a sentence for substantive unreasonableness “only in exceptional cases where the trial court’s decision ‘cannot be located within the ra nge of permissible decisions,’” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)), i.e. , in the “rare case” where the sentence woul d “damage the administration of justice because the sentence imposed was shockingly hi gh, shockingly low, or otherwise unsupportable3 as a matter of law,” United States v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009) (internal quotation marks omitted). Further, “we take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Cavera , 550 F.3d at 190. We do 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, 247 (2d Cir. 2009) (quoting United States v. Fernandez , 443 F.3d 19, 34 (2d Cir. 2006)); see also Kimbrough v. United States , 552 U.S. 85, 109 (2007) (noting that the senten cing judge is “in a superior position to find facts and judge their im port under § 3553(a)” (quoting Gall v. United States , 552 U.S. 38, 51 (2007))). Guzman’s argument on appeal is rooted in a series of cases in which the Supreme Court articulated Eighth Amendment limits on sentences that may be imposed on juvenile offenders,
i.e. , those who were under 18 at the time they co mmitted their crimes. Specifically, the Court determined that the Eighth Amendment forb ids the imposition of the death penalty on any juvenile offender, see Roper v. Simmons , 543 U.S. 551, 578 (2005), the imposition of life imprisonment without parole on a juven ile offender not convicted of homicide, see Graham v. Florida , 560 U.S. 48, 74 (2010), and the mandating of a sentence of life imprisonment without parole for a juvenile offender convicted of homicide, see Miller v. Alabama , 132 S. Ct. 2455, 2460 (2012). The Supreme Court in Miller also identified a series of factors relevant to determining whether a life sentence is warrante d, including the juvenile’s “chronological age and its hallmark features,” “the family and ho me environment that surrounds him,” “the circumstances of the homicide offense,” and “the possibility of rehabilitation.” 132 S. Ct. at 2468.4 With these considerations in mind, we see no basis here to set aside as substantively unreasonable the district court’s sound exercise of its discretion. Following an evidentiary hearing, the district court gave ample consideration to each of the Miller factors, together with the sometimes-overlapping § 3553(a) factors, in dete rmining that a life sentence was appropriate. In both open court and in a written statement of reasons, the district c ourt indicated that the sentence it imposed “reflect[ed] the seriousness of the offense[,] . . . promote[d] respect for the law[,] . . . provide[d] a just punishment,” and would foster general a nd specific deterrence. App’x 283, 312–13. The district cour t likewise based its sentence on the fact that Guzman was nearly 18 when he committed the brutal and hei nous acts in question; that his acts were not “impulsive,” but rather were “calculated,” not caused by peer pressure, and followed by no remorse; that Guzman had engaged in “violent c onduct in jail” and remained associated with his gang through sentencing; that nothing in hi s family background explained his “extremely depraved conduct”; and that, in the district court’s view, even in light of an expert’s report and testimony, the possibility of Guzman’s future rehabilitation was “remote[].” App’x 311, 314– 19. Guzman contends that the district cour t’s sentence was substantively unreasonable because he demonstrated a “possibility of reform ,” Appellant’s Br. 33, a nd because the district court relied on retribution and deterrence rationa les that have diminished relevance when sentencing adolescent offenders, see Miller , 132 S. Ct. at 2465 (retribution); Thompson v. Oklahoma , 487 U.S. 815, 836–37 (1988). Yet, as the preceding discussion makes clear, the district court considered a broad spectrum of relevant factors in se ttling on an appropriate sentence, and its thoughtful consideration of—and conclusion concerning—Guzman’s chances5 of rehabilitation was not unreasonable. The di strict court, accordingly, did not abuse its discretion. We have considered Defendant-Appellant’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk