13-1961 United States v. Baxter 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 11 th** **day of April, two thousand fourteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges .**  9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-1961** 15 16 **KEITH RUTHER, AKA KIKI, ERNEST BAKER,** 17 **AKA SLAY, AKA Q., ERIC BRADLEY, AKA** 18 **LITTLE E., LEANDRO JONES, AKA GUTTA,** 19 **MATTHEW LATSON, AKA PONYTAIL, PRINTICE** 20 **LATSON, AKA CUDA, CEDRIC LEWIS, AKA** 21 **NEPHEW, JAMAR NELSON, AKA SON SON,** 22 **Defendants ,**  23 24 **ROBERT BAXTER, AKA LOW,** 25 **Defendant-Appellant .**  26 - - - - - - - - - - - - - - - - - - - -X 27 28
1**FOR APPELLANT:** GILBERT R. PEREZ, Rochester, New 1 York. 2 3 **FOR APPELLEE:** JOSEPH J. KARASZEWSKI, for 4 William J. Hochul, Jr., United 5 States Attorney for the Western 6 District of New York, Buffalo, 7 New York. 8 9 Appeal from a judgment of the United States District 10 Court for the Western District of New York (Geraci, J. ). 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12

**AND DECREED**that the judgment of the district court be 13

**AFFIRMED**

. 14 Robert Baxter appeals from the judgment of the United 15 States District Court for the Western District of New York 16 (Geraci, J. ), convicting him of conspiracy to possess 17 cocaine with intent to distribute controlled substances, in 18 violation of 21 U.S.C. § 846 . On appeal, Baxter challenges 19 the refusal to grant a downward adjustment of the sentence 20 based on his time spent in state custody for a parole 21 violation. We assume the parties’ familiarity with the 22 underlying facts, the procedural history, and the issues 23 presented for review. 24 “We review a [district court’s] sentence for 25 reasonableness, which is ‘akin to review for abuse of 26 discretion, under which we consider whether the sentencing 27

2judge exceeded the bounds of allowable discretion, committed 1 an error of law in the course of exercising discretion, or 2 made a clearly erroneous finding of fact.’” United States 3 v. Leslie , 658 F.3d 140, 142 (2d Cir. 2011) (per curiam) 4 (quoting United States v. Williams , 475 F.3d 468, 474 (2d 5 Cir. 2007)). “‘[A] refusal to downwardly depart is 6 generally not appealable,’ and . . . review of such a denial 7 will be available only ‘when a sentencing court 8 misapprehended the scope of its authority to depart or the 9 sentence was otherwise illegal.’” United States v. Stinson , 10 465 F.3d 113, 114 (2d Cir. 2006) (per curiam) (quoting 11 United States v. Valdez , 426 F.3d 178, 184 (2d Cir. 2005)). 12 Contrary to Baxter’s contention, the district court 13 appropriately considered the application of U.S.S.G. § 14 5G1.3. The record does not reflect that the district court 15 felt bound to reject Baxter’s request for a downward 16 adjustment; rather, the court stated that the Guidelines do 17 not compel that the request be granted. Moreover, any 18 expectation Baxter had of obtaining a adjustment was 19 misplaced; no guarantees were made by the court or the 20 prosecution regarding the applicability of § 5G1.3. 21

3For the foregoing reasons, and finding no merit in 1 Baxter’s other arguments, we hereby **AFFIRM** the judgment of 2 the district court. 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7 8 9 10

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