### 1 14-2203 United States v. Fernandini



### UNITED STATES COURT OF APPEALS 1


### FOR THE SECOND CIRCUIT 2 3 

# SUMMARY ORDER 4

5

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER** 6

**FILED ON OR AFTER J**  **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  7

**A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  = **S L**  **OCAL R**  **ULE 32.1.1.**  **W HEN CITING A SUMMARY**  8

**ORDER IN**  **A DOCUMENT**  **FILED WITH**  **THIS COURT**  **, A**  **PARTY MUST**  **CITE EITHER**  **THE F**  **EDERAL A**  **PPENDIX** 9

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

**ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .**  11
12 

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

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

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


### 15 **th** 

### day of June, two thousand sixteen. 16

17 

### PRESENT: AMALYA L. KEARSE, 18 

### RALPH K. WINTER, 19 

### DENNIS JACOBS, 20 

### Circuit Judges. 21

22



### - - - - - - - - - - - - - - - - - - - -X 23 

### UNITED STATES OF AMERICA, 24 

### Appellee, 25

26


### -v.- 14-2203 27

28 

### LEVIT FERNANDINI, 29 

### Defendant-Appellant. 30

31



### - - - - - - - - - - - - - - - - - - - -X 32
33


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

35


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

### Denton, Jr., Anna M. Skotko, 37 

### Assistant United States 38 

### Attorneys, for Preet Bharara, 39

### 2 United States Attorney for the 1 

### Southern District of New York, New 2 

### York, NY. 3

4 

### Appeal from a judgment of the United States District Court 5 

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

7 

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


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

### part and **REMANDED** in part. 10

11 

### Levit Fernandini appeals from the judgment of the United 12 

### States District Court for the Southern District of New York 13 

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

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

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

### discharging a firearm during and in furtherance of the narcotics 17 

### trafficking conspiracy. Fernandini was sentenced principally 18 

### to life imprisonment, which Fernandini challenges as 19 

### unreasonable. We assume the parties’ familiarity with the 20 

### underlying facts, the procedural history, and the issues 21 

### presented for review. 22



### 1. Our review of the substantive reasonableness of a 23 

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

### sentences as substantively unreasonable “only in exceptional 25 

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

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

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

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

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

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



### The district court had sound reasons for imposing a 32 

### guidelines sentence of life imprisonment. Fernandini was the 33 

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

### As gang leader, he significantly increased the quantity of 35 

### narcotics the organization imported and enforced the 36 

### organization’s territory with violence, including killing or 37 

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

### had wide latitude to impose a sentence within the guidelines 39 

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

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

### at rehabilitation. A sentence of life imprisonment does not 2 

### create an unwarranted sentencing disparity with Fernandini’s 3 

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

### large-scale narcotics trafficking outfit that protected its 5 

### territory with lethal force. 6



### 2. We review a sentence for procedural reasonableness 7 

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

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

### court’s application of the Sentencing Guidelines is reviewed 10 

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

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

### sentence is procedurally unreasonable if the district court 13 

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

### Guidelines range, treats the Sentencing Guidelines as 15 

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

### sentence based on clearly erroneous facts, or fails adequately 17 

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

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



### Fernandini fails to establish that the district court 20 

### committed any procedural error. The district adequately 21 

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

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

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

### Similarly, the district court properly calculated Fernandini’s 25 

### offense level as 49 before applying an acceptance of 26 

### responsibility reduction, rather than capping it at the highest 27 

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

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

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

### and the Fatico hearing furnished sufficient evidence to support 31 

### application of the sentencing guideline for first degree murder 32 

### rather than second degree murder. 33



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

### guilty plea was factually insufficient. We review this claim 35 

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

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

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

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

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

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

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

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

### sufficient basis for Fernandini to plead guilty to the count 5 

### charging him with committing murder in furtherance of the drug 6 

### trafficking conspiracy. 7



### 4. Fernandini pleaded guilty to and was sentenced for 8 

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

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

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

### of the narcotics trafficking conspiracy, in violation of 18 12 

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

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

### conviction. Because the government represented below that 15 

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

### district court imposed a life sentence of imprisonment on the 17 

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

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

### instructions that the district court vacate the conviction and 20 

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



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

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

### judgment of the district court. 24



### FOR THE COURT: 25 

### CATHERINE O’HAGAN WOLFE, CLERK 26