Because Judge Debra Ann Livingston, originally 1 assigned to this panel, recused herself from this case, the remaining two judges issue this order in accordance with Second Circuit Internal Operating Procedure E ( 2n Cir. IOP E). 08 -35 86-cr United Sta

tes v. Chao (Han) 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORD E RDO 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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 18 day of February, two thousand ten. th 5 6 PRESENT: 7 GUIDO CALABRESI, 8 ROBERT A. KATZMANN, 9 Circuit Judges . 1 10

_______________________________________ 11 12 UNITED STATES OF AMERICA, 13 Appellee , 14 15 v. 08-3586-cr 16 NAC 17 JUNG CHAO, also known as TONY, CHUNG MY HUONG NGUYEN, also 18 known as LAN, THUONG TRI TANG, SPARTAK NOKU, MOHAMMAD ALI 19 HUSSAIN, also known as ELI, SOMNATH MUKHERJEE, also known as 20 UNCLE ELI, also known as SATISHKUM PATEL, JASON CHANG, also 21 known as JAY, JAE KANG, DANH THANH VU, also known as INKMAN, 22 also known as MR. DAN, MING NGUYEN, also known as MINH, 23 PHONG DOC NGUYEN, YUTHIEN TRANS, also known as DUNG, also 24 known as TEETHIAN TRANS, LILLY QUANG NGUYEN, also known as 25 NURSE LILLY, THANH KIM, TAIDE TAN, also known as KYAW T. 26 PAINE, VU P. LEE, XIA WU HU, JIAN PING GUAN, also known as 27 SHAO PING, also known as MARK, also known as GUAN JIAN PING,2 1 ZHANG OU, JIA LONG WANG, also known as LITTLE DRAGON, 2 Defendants , 3 4 ERIC HAN, also known as AH ER, 5 Defendant-Appellant . 6

______________________________________ 7 8 FOR DEFENDANT9 APPELLANT: Marlon G. Kirton, Law Offices of 10 Marlon G. Kirton, New York, NY. 11 12 FOR APPELLEE: Jeffrey A. Brown, Michael A. Levy, 13 for Preet Bharara, United States 14 Attorney for the Southern District 15 of New York, New York, NY. 16 1 7 UPON DUE CONSIDERATION of this appeal from the judgment 1 8 of the United States District Court for the Southern 1 9 District of New York (Koeltl, J. ), it is hereby ORDERED, 2 0 ADJUDGED, AND DECREED that the judgment of the district 2 1 court is AFFIRMED. 2 2 Defendant-Appellant Eric Han appeals the judgment of 2 3 the United States District Court for the Southern District 2 4 of New York, sentencing him to 24 months’ imprisonment and 2 5 the applicable mandatory minimum of six years of supervised 2 6 release. We assume the parties' familiarity with the facts 2 7 of the case, its procedural history, and the scope of the 2 8 issues on appeal. 2 9 Han argues that the district court treated the 3 0 Sentencing Guidelines as binding or at least presumptively3 1 reasonable and did not adequately consider the sentencing 2 factors in 18 U.S.C. § 3553(a), and hence that the 24-month 3 sentence was procedurally unreasonable. We review the 4 sentence for reasonableness, United States v. Booker , 543 5 U.S. 220, 261-62 (2005); United States v. Fernandez , 443 6 F.3d 19, 25-26 (2d Cir. 2006), “under a deferential abuse7 of-discretion standard,” United States v. Cavera , 550 F.3d 8 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks 9 omitted). Because Defendant challenges only the procedural 1 0 reasonableness of the sentence, we do not review here the 1 1 actual length of the sentence. 1 2 It is clear from the record that the court was “aware 1 3 of both the statutory requirements and the sentencing range 1 4 or ranges that are arguably applicable.” United States v. 15 Fleming , 397 F.3d 95, 100 (2d Cir. 2005). There is a strong 1 6 presumption that judges have considered factors under 1 7 section 3553(a) and related arguments absent “record 1 8 evidence suggesting otherwise.” Fernandez , 443 F.3d at 30. 1 9 Han’s claim that the district court failed to consider his 2 0 need for drug treatment and his desire to pursue education 2 1 is not supported by any such evidence. Indeed, there is 2 2 evidence to the contrary; the district court recommended4 1 drug treatment during Han’s imprisonment. “[W]e do not 2 require ‘robotic incantations’ that the district court has 3 considered each of the § 3553(a) factors,” Cavera , 550 F.3d 4 at 193, especially in a garden-variety case such as this one 5 “where the parties have addressed only straightforward, 6 conceptually simple arguments to the sentencing judge,” id. 7 (internal quotation marks omitted). 8 Although the court gave deference to the Sentencing 9 Guidelines, it did not treat those Guidelines as binding or 1 0 even presumptively reasonable, but simply treated them as a 1 1 “starting point and the initial benchmark,” giving due 1 2 consideration to the fact that the Guidelines are “the 1 3 product of careful study based on extensive empirical 1 4 evidence derived from the review of thousands of individual 1 5 sentencing decisions.” Gall v. United States , 552 U.S. 38, 1 6 46, 49 (2007). It is apparent from the court’s 1 7 consideration of the § 3553(a) factors that it was willing 1 8 and able to consider deviating from the Guidelines, but 1 9 because nothing was especially unusual about this case, the 2 0 court gave deference to the careful study that went into the 2 1 Guidelines and ended where it began, with the “starting 2 2 point” that is the Guidelines. Id. at 49. In any event, 2 3 the district court specifically stated, “I appreciate that 2 4 the guidelines are only advisory.”5 1 We have reviewed all of Defendant-Appellant's remaining 2 arguments and have found each of them to be without merit. 3 Accordingly, the judgment of the district court is AFFIRMED. 4 5 6 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk 10 11