20

- 4102

- cr United States v. Sisnero

- Gil
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 A SUMMARY O RDER @ ). A PARTY CITING TO 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 for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 st day of February , two thousand twenty

- two

. 3 4 PRESENT: PIERRE N. LEVAL, 5 RAYMOND J. LOHIER, JR., 6 BETH ROBINSON, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 UNITED STATES OF AMERICA, 10 11 Appellee , 12 13

v. No. 20

- 4102

- cr 14 15 MARLON SISNERO

- GIL , 16 17 Defendant

- Appellant

. * 18

------------------------------------------------------------------ 19

* The Clerk of Court is directed to amend the caption as set forth above.2 FOR DEFENDANT

- APPELLANT : Robin Christine Smith , Law 1 Office o f Robin C. Smith, Esq., 2 P.C. , San Rafael, CA 3 4 FOR APPELLEE : Stephanie L. Lake, Danielle R. 5 Sassoon, Assistant United 6 States Attorneys, for Damian 7 Williams, United States 8 Attorney for the Southern 9 District of New York, New 10 York, NY 11 Appeal from a judgment of the United States District Court for the 12

Southern District of New York ( Richard J. Sullivan , Judge ). 13
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 14

AND DECREED that the judgment of the District Court is AFFIRMED

. 15

Marlon Sisnero

- Gil appeals f rom a November 18, 2020 judgment of 16

conviction by the United States District Court for the Southern District of New 17

York ( Sullivan , J. ) sentencing him principally to a term of 180 months’ 18
imprisonment

. On appeal, Sisnero

- Gil challenges the substantive reasonableness 19

of his sentence. We assume the parties’ familiarity with the underlying facts and 20

record of prior proceedings, to which we refer only as necessary to explain our 21

decision to affirm. 223 Sisnero

- Gil was charged in a three

- count superseding indictment with 1 distributing and conspiring to distribute cocaine , in violation of 21 U.S.C. 2
§§ 84l(b)(l)(A), 84l(b)(l)(B), and 846 , and failing to appear after being released on 3

bail , in violation of 18 U.S.C. §§ 3146(a)(1) an d (b)(1)(A)(i)

. Sisnero

- Gil ple aded 4 guilty to all three counts pursuant to a plea agreement that included a provision 5 in which he waived the right to appeal any sentence within or below a stipulated 6 Guidelines range of 121 to 151 months (the “Stipulated Guidelines Range”)

. In 7 calculating th at range, the parties agreed that Sisnero

- Gil was entitled to a two

8

level reduction in his offense level, thus reducing his offense level from 34 to 32, 9

because he appeared to m eet the safety valve criteria set forth in 18 U.S.C. 10
§ 3 553(f) and § 5C1.2(a) o f the Guidelines. The District Court later determined , 11
however, that Sisnero

- Gil was not in fact entitled to safety

- valve relief and that 12 the correct Guidelines range was 151 to 188 months. The District Court 13

thereafter sentenced Sisnero

- Gil principally to a term of 180 months’ 14
imprisonment. 15

We first note that Sisnero

- Gil claims only that his sentence is substantively 16 unreasonable; he makes no argument about the procedural reasonableness of his 174 sentence. We review the substantive reasonable ness of a sentence for abuse of 1

discretion , s ee Gall v. United States , 552 U.S. 38, 41, 51 (2007) , understanding that 2

district c ourts enjoy “very wide latitude” in sentencing, and we will conclude 3

that a sentence is substantively unreasonable only if it “cannot be located within 4 the range of permissible decisions , ” United States v. Cavera , 550 F.3d 180, 188

– 89 5
(2d Cir. 2008) (quotation marks omitted)

. 6
As an initial matter, Sisnero

- Gil claims that the District Court was bound 7 to impose a sentence within the Stipulated Guidelines Range. We are not 8 persuaded. The District Court determined that the correct applicable Guidelines 9 range was 151 to 188 months because it found that Sisnero

- Gil was not eligible 10

for safety

- valve relief

. On appeal, Sisnero

- Gil does not challenge this finding or 11

claim that the Dist rict Court’s Guidelines range determination was procedurally 12

unreasonable

. And both in his plea agreement and at his allocution, Sisnero

- Gil 13 acknowledged that the District Court was not “ bound by the

. . . Guidelines 14 stipulation, either as to questions of fact or as to the determination of the proper 15

Guidelines. ” Add. 4 ; see App’x 62

– 63

. 16

Sisnero

- Gil also contends that the District Court placed disproportionate 175 weight on his failure to appear and failed to adequately consider mitigating 1

evidence. Contrary to Sisnero

- Gil’s claim that the District Court “abandon[ed] 2
[ this ] obligation to consider

. . . crucial sentencing factors,” Def.’s Br. 17, the 3

District Court considered the § 3553(a) factors and various mitigating 4

circumstances , including his employment, family circumstances, the non

- violent 5
nature of his offense, and the allegation that his attorney advised him to flee

. It is 6
true that, in assessing the seriousness of Sisnero

- Gil’s offenses and the need to 7 promote respect for the law , the District Court afforded particular weight to the 8 fact that he failed to appear i n court and lied to law enforcement officers

. But 9

“ [t] he particular weight to be afforded aggravating and mitigating factors is a 10 matter firmly committed to the discretion of the sentencing judge,” United States 11
v. Broxmeyer , 699 F.3d 265, 289 (2d Cir. 2012) , and this Court generally does “not 12 second guess the weight (or lack th ereof) that the judge accorded to a given 13
factor,” United States v. Pope , 554 F.3d 240, 24 7 (2d Cir. 2009)

. Here, t he D istrict 14

C ourt acted well within its discretion in affording the most sentencing weight to 15

the fact that Sisnero

- Gil fled before trial an d lied to federal agents. 16 Finally, Sisnero

- Gil argues that his sentence created an unwarranted 176 disparity between him and one of his co

- defendant s
. But § 3553(a)’s instruction 1 to “avoid unwarranted sentence disparities” refers to nationwide disparities ; 2 sentencing judges are not required to consider sentencing disparities between co

3

defendants. United States v. Frias , 521 F.3d 229, 236 (2d Cir. 2008) (q uotation 4
marks omitted)

. Regardless, Sisnero

- Gil’s co
- defendant’s eligibility for safety

5

valve relief , among other factors in the record, reasonably explains the different 6

sentences imposed

. See United States v. Ebbers , 458 F.3d 110, 129 (2d Cir. 2006)

. 7
In sum, we conclude that the District Court's sentence fell within the range 8 of permissible decisions and reject Sisnero

- Gil ’s claim that it was substantive ly 9

unreasonable. 10

We have considered Sisnero

- Gil ’s remaining arguments and conclude that 11 they are without merit. For the foregoing reasons, the judgment of the District 12

Court is AFFIRMED. 13

FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court 15 16 17