1 14-2459-cr United States v. Turner 

### 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 Co urthouse, 40 Foley Square, in the City of New York, on the 26 th day of October, two thousand fifteen.
Present: D EBRA A NN L IVINGSTON , C HRISTOPHER F. D RONEY , Circuit Judges , S IDNEY H. S TEIN , District Judge .*

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 14-2459-cr
B ENJAMIN J. T URNER , Defendant-Appellant

.

_____________________________________ For Appellee: Susan Corkery, Mi chael P. Canty, Assistant United States Attorneys, for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y. ( on submission ).

* The Honorable Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation.2 For Defendant-Appellant: Daniel M. Perez, Law Offices of Daniel M. Perez, Newton, N.J. ( on submission ).
UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the sentence imposed by the district court is AFFIRMED

. Defendant-Appellant Benjamin J. Turner appeals from a July 3, 2014 judgment of the United States District Court for the Ea stern District of New York (Block, J. ), sentencing him to a total of seventy-four months of imprisonment, af ter a jury convicted Turn er of conspiracy to commit wire and bank fraud, in violation of 18 U.S.C. § 1349; bank fraud, in violation of 18 U.S.C. § 1344; and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Turner challenges his sentence on the gr ounds that it was substantively unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. * * * After the trial, the United States Probation Office prepared a Presentence Report (“PSR”), which calculated Turner’s sent encing range under the United St ates Sentencing Guidelines (“Guidelines”). The PSR set Turner’s offense le vel at 39 and criminal hi story category at I. Accordingly, the estimated sentencing range und er the Guidelines was 262 to 327 months. At the sentencing hearings — which took place on May 21, June 17, and June 25, 2014 — there was a dispute as to the total loss for which Turner wa s responsible. At the final sentencing hearing, the district court found that Turner was responsib le for $5.5 million in losses, and that Turner personally received around $500,000 in the course of conducting the fraudulent scheme. Based on these findings, the district court deemed Tu rner’s offense level to be 31, in lieu of 39, resulting in an estimated sentencing range und er the Guidelines of 108 to 135 months, given3 Turner’s criminal history category. After consid ering the factors listed in 18 U.S.C. § 3553(a), the district court adopted a below-Guidelines sentence consisting of c oncurrent 50-month terms of imprisonment on the conspiracy and fraud counts and a consecutive 24-month term of imprisonment on the aggravated identity theft count. We review sentences for reasonableness. See United States v. Cavera , 550 F.3d 180, 187 (2d Cir. 2008) (en banc). The reasonableness st andard “applies both to ‘the sentence itself’ and to ‘the procedures employed in arriving at the sentence.’” United States v. Verkhoglyad , 516 F.3d 122, 127 (2d Cir. 2008) (quoting United States v. Fernandez , 443 F.3d 19, 26 (2d Cir. 2006)). The substantive reasonabl eness inquiry assesses “the length of the sentence imposed in light of the [§ 3553(a)] factors.” United States v. Villafuerte , 502 F.3d 204, 206 (2d Cir. 2007). “In reviewing for substantive reas onableness, we consider the totality of the circumstances and reverse only in exceptional cases where the trial court’s decision cannot be located within the range of possible decisions.” United States v. Mason , 692 F.3d 178, 181 (2d Cir. 2012) (citations and internal quotation marks omitted). We therefore review the substantive reasona bleness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007); see also Cavera , 550 F.3d at 189 (“[A]ppellate courts play an importan t but clearly secondary ro le in the process of determining an appropriate sentence. We review th e work of district courts under a ‘deferential abuse-of-discretion standard.’” (quoting Gall , 552 U.S. at 41)). “T he abuse-of-discretion standard incorporates de novo review of questions of law (including interpretation of the Guidelines) and clear-error revi ew of questions of fact.” United States v. Legros , 529 F.3d 470, 474 (2d Cir. 2008).4 Turner claims, first, that the district cour t did not properly consider the § 3553(a) factors and that the sentence of seventy-four months’ imprisonment was “shockingly high” in light of his personal circumstances. He argues, in particul ar, that the district court failed to consider evidence regarding the support of his family and his difficult upbringing. He cites evidence of numerous family members, colleagues, and friend s submitting letters on his behalf, detailing his upstanding personal characteri stics. But the district court in fact considered such factors and counted them in favor of Turner. At the sentencing hearing, Judge Block noted, “You have wonderful family support and your wife’s support. That’s certainly something which weighs well in terms of the calculus of how we come ou t with this number that we have to come out with.” We find no abuse of disc retion in the district court’s c onsideration of the information and, indeed, the specific weight a district court affords a § 3533(a) factor is generally beyond appellate review. See United States v. Verkhoglyad , 516 F.3d 122 (2d Cir. 2008) (“[T]he weight to be afforded by any § 3553(a) factor ‘is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable.’” (quoting Fernandez , 443 F.3d at 32)). Turner next argues that his crimes, while “ undoubtedly serious,” were “eclipsed by other financial crimes in recent memory.” He points, for instance, to United States v. Ebbers , 458 F.3d 110 (2d Cir. 2006), where the defendant was responsible for losses in excess of $1 billion — significantly more than the $5.5 million loss for which Turner was responsible — yet received a sentence only four times as long as Turner’s sentence. Notably, however, the district court made explicit that the § 3553(a) factors, not the $5.5 million loss calculation, would drive its
determination of the sentence. Turner conten ds that his sentence was “more than double the average fraud sentence imposed nationally or in this Circuit.” The evidence Turner cites,5 however, is highly generalized, and we note that Turner’s crimes do not amount to a run-of-the-mill “fraud.” Finally, Turner argues that the district court fa iled to consider Turner’s age and empirical evidence suggesting that his age is connected to a low likelihood of recidivism. Turner was in his early forties when he embarked on his fraudul ent scheme and was fifty years old at the time of sentencing. While we have recognized th at a defendant’s olde r age may “indicate a decreased likelihood of recidivism,” United States v. Hernandez , 604 F.3d 48, 54 (2d Cir. 2010), we have also discredited the low recidivism argument where evidence shows that “[a]ging clearly has not increased [a de fendant’s] respect for the law,” United States v. Trupin , 475 F.3d 71, 75–76 (2d Cir. 2007), vacated on other grounds , 552 U.S. 1089 (2008). We cannot conclude that the district c ourt failed to consider Turner’s age, or that it was somehow improperly weighted. We have considered Turner’s remaining argumen ts and find them to be without merit. For the foregoing reasons, the judg ment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk