#### UNITED STATES of America, Appellee, v. Jean Claude CATUL, Defendant-Appellant.

No. 16-1565(L), No. 16-1578(CON)

United States Court of Appeals, Second Circuit.

April 14, 2017

For. Defendant-Appellant: Colleen P. Cassidy, Federal Defenders of New York, Inc., New York, NY.

For Appellee: Jo Ann M. Navickas and Mark E. Misorek, Assistant United States Attorneys, Of Counsel, for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY.

Present: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, PIERRE N. LEVAL, Circuit Judges.

SUMMARY ORDER

Defendant-Appellant Jean Claude Catul appeals from two final judgments entered by the district court (Irizarry, J.) on May 16, 2016, the first sentencing him principally to- 72 months’ imprisonment for wire fraud and aggravated identity theft, and the second sentencing him to 36 months’ imprisonment to run consecutively for a violation of supervised release. In sum, the district court sentenced Catul to 108 months’ imprisonment, a term of imprisonment 42 months above the top of Catul’s combined Guidelines ranges. Catul challenges his above-Guidelines sentence as procedurally and substantively unreasonable, contending that the district- court erred by imposing an above-Guidelines sentence solely on the basis of Catul’s criminal history when that criminal history was already accounted for in Catul’s Guidelines ranges. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

*45‘We review a sentence for procedural and substantive reasonableness under a ‘deferential abuse-of-discretion standard.’ ” *United States v. Thavaraja,*740 F.3d 253, 258 (2d Cir. 2014) (quoting *Gall v. United States,*552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).

Catul’s appeal is based on a mistaken premise. The district court did not base its variance from the Guidelines solely on Ca-tul’s criminal history. Rather, the district court justified its above-Guidelines sentence by reference to the need to deter the defendant and to protect the public from him, as well as to the fact that Catul had exhibited violent tendencies and had received lenient sentences for prior convictions.

Moreover, we have never held that a district court cannot impose an above-Guidelines sentence on the basis of recidivism. Such a rule would be inconsistent with federal sentencing law in the wake of *United States v. Booker,*543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny, under which it is “emphatically clear that the Guidelines are guidelines— that is, they are truly advisory.” *United States v. Cavera,*550 F.3d 180, 189 (2d Cir. 2008) (en banc). While “[t]he Guidelines provide the ‘starting point and the initial benchmark’ for sentencing,” district courts must conduct their “own independent review of the sentencing factors” set forth in 18 U.S.C. § 3553(a) and are “generally free to impose sentences outside the recommended range.” *Id.*(quoting *Gall,*552 U.S. at 49, 128 S.Ct. 586). Indeed, “[a] sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime.” *Id.*at 188.

The district court did not exceed that latitude or otherwise err here. It acted within its discretion m imposing an above-Guidelines sentence for the reasons it explained.

We have considered all of the defendant’s arguments on this appeal and find in them no basis for reversal. Accordingly, we AFFIRM the judgments of the district court.