1

14-2203 

United States v. Fernandini

1 UNITED STATES COURT OF APPEALS 

2 FOR THE SECOND CIRCUIT

3 

4 SUMMARY ORDER

5 

6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 

7 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

8 APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

9 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

10 OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY 

11 ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

12 

13 At a stated term of the United States Court of Appeals for 

14 the Second Circuit, held at the Thurgood Marshall United States 

15 Courthouse, 40 Foley Square, in the City of New York, on the 

15th 16 day of June, two thousand sixteen. 

17 

18 PRESENT: AMALYA L. KEARSE, 

19 RALPH K. WINTER, 

20 DENNIS JACOBS, 

21 Circuit Judges. 

22 

23 - - - - - - - - - - - - - - - - - - - -X 

24 UNITED STATES OF AMERICA, 

25 Appellee, 

26 

27 -v.- 14-2203 

28 

29 LEVIT FERNANDINI, 

30 Defendant-Appellant. 

31 

32 - - - - - - - - - - - - - - - - - - - -X 

33 

34 FOR APPELLANT: Bruce R. Bryan, Syracuse, NY. 

35 

36 FOR APPELLEE: Jessica A. Masella, David W. 

37 Denton, Jr., Anna M. Skotko, 

38 Assistant United States 

39 Attorneys, for Preet Bharara, 
2

1 United States Attorney for the 

2 Southern District of New York, New 

3 York, NY. 

4 

5 Appeal from a judgment of the United States District Court 

6 for the Southern District of New York (Crotty, J.). 

7 

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 

9 DECREED that the judgment of the district court be AFFIRMED in 

10 part and REMANDED in part. 

11 

12 Levit Fernandini appeals from the judgment of the United 

13 States District Court for the Southern District of New York 

14 (Crotty, J.) convicting him of (i) conspiracy to traffic 

15 narcotics, (ii) using a firearm to commit murder during and in 

16 furtherance of the narcotics trafficking conspiracy, and (iii) 

17 discharging a firearm during and in furtherance of the narcotics 

18 trafficking conspiracy. Fernandini was sentenced principally 

19 to life imprisonment, which Fernandini challenges as 

20 unreasonable. We assume the parties’ familiarity with the 

21 underlying facts, the procedural history, and the issues 

22 presented for review. 

23 1. Our review of the substantive reasonableness of a 

24 sentence is “particularly deferential”: we will set aside 

25 sentences as substantively unreasonable “only in exceptional 

26 cases where the trial court’s decision cannot be located within 

27 the range of permissible decisions”; that is, if the sentence 

28 “shock[s] the conscience,” if it “constitutes a manifest 

29 injustice,” or if “allowing [it] to stand would damage the 

30 administration of justice.” United States v. Aldeen, 792 F.3d 

31 247, 255 (2d Cir. 2015) (internal quotation marks omitted). 

32 The district court had sound reasons for imposing a 

33 guidelines sentence of life imprisonment. Fernandini was the 

34 leader of a notorious and ruthless gang for nearly a decade. 

35 As gang leader, he significantly increased the quantity of 

36 narcotics the organization imported and enforced the 

37 organization’s territory with violence, including killing or 

38 ordering the killing of rival gang members. The district court 

39 had wide latitude to impose a sentence within the guidelines 

40 range for Fernandini’s heinous conduct, notwithstanding the 
3

1 abuse he suffered as a child and the efforts he has made in prison 

2 at rehabilitation. A sentence of life imprisonment does not 

3 create an unwarranted sentencing disparity with Fernandini’s 

4 co-defendants; he was the leader who reshaped the gang into a 

5 large-scale narcotics trafficking outfit that protected its 

6 territory with lethal force. 

7 2. We review a sentence for procedural reasonableness 

8 under a “deferential abuse-of-discretion standard.” Gall v. 

9 United States, 552 U.S. 38, 41 (2007). That means a district 

10 court’s application of the Sentencing Guidelines is reviewed 

11 de novo and its factual findings are reviewed for clear error. 

12 United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). A 

13 sentence is procedurally unreasonable if the district court 

14 “fails to calculate (or improperly calculates) the Sentencing 

15 Guidelines range, treats the Sentencing Guidelines as 

16 mandatory, fails to consider the § 3553(a) factors, selects a 

17 sentence based on clearly erroneous facts, or fails adequately 

18 to explain the chosen sentence.” Aldeen, 792 F.3d at 251 

19 (quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)). 

20 Fernandini fails to establish that the district court 

21 committed any procedural error. The district adequately 

22 explained the basis for its factual findings, made after a 

23 hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d 

24 Cir. 1979), and we see no clear error in those findings. 

25 Similarly, the district court properly calculated Fernandini’s 

26 offense level as 49 before applying an acceptance of 

27 responsibility reduction, rather than capping it at the highest 

28 offense level listed in the Sentencing Guidelines table (43) 

29 before reducing it. See United States v. Caceda, 990 F.2d 707, 

30 709-10 (2d Cir. 1993). Finally, Fernandini’s plea allocution 

31 and the Fatico hearing furnished sufficient evidence to support 

32 application of the sentencing guideline for first degree murder 

33 rather than second degree murder. 

34 3. Fernandini argues for the first time on appeal that his 

35 guilty plea was factually insufficient. We review this claim 

36 for plain error: there must be error, the error must be obvious, 

37 affect the defendant’s substantial rights, and seriously affect 

38 the fairness and integrity of the judicial proceeding. See, 

39 e.g., United States v. Garcia, 587 F.3d 509, 515 (2d Cir. 2009). 
4

1 Fernandini cannot identify any error, let alone a plain one, 

2 because there was an adequate factual basis for his plea. The 

3 district court’s factual findings at the Fatico hearing and 

4 Fernandini’s own plea allocution establish that there was a 

5 sufficient basis for Fernandini to plead guilty to the count 

6 charging him with committing murder in furtherance of the drug 

7 trafficking conspiracy. 

8 4. Fernandini pleaded guilty to and was sentenced for 

9 using a firearm to commit murder during and in furtherance of 

10 the narcotics trafficking conspiracy, in violation of 18 U.S.C. 

11 § 924(j), and discharging a firearm during and in furtherance 

12 of the narcotics trafficking conspiracy, in violation of 18 

13 U.S.C. § 924(c). Fernandini asks that his § 924(c) conviction 

14 be vacated as a lesser included offense of his § 924(j) 

15 conviction. Because the government represented below that 

16 Fernandini would not be sentenced on the § 924(c) count and the 

17 district court imposed a life sentence of imprisonment on the 

18 § 924(j) count, the government consents to vacatur of 

19 Fernandini’s § 924(c) conviction. Accordingly, we remand with 

20 instructions that the district court vacate the conviction and 

21 sentence as to the § 924(c) count. 

22 Accordingly, and finding no merit in Fernandini’s other 

23 arguments, we hereby AFFIRM in part and REMAND in part the 

24 judgment of the district court. 

25 FOR THE COURT: 

26 CATHERINE O’HAGAN WOLFE, CLERK