1 16-1336-cr United States v. Correa

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 26 th day of May, two thousand seventeen.

PRESENT: A MALYA L. K EARSE , J OSÉ A. C ABRANES , D ENNY C HIN , Circuit Judges.

U NITED S TATES OF A MERICA , Appellee, 16-1336-cr

v.

X

AVIER C ORREA , AKA X,

Defendant-Appellant. 1

FOR DEFENDANT-APPELLANT: James M. Branden, Law Office of James M. Branden, New York, NY.

FOR APPELLEE: Nicolas Landsman-Roos and Karl Metzner, Assistant United States Attorneys, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY.

1 The Clerk of Court is respectfully directed to amend the official caption to conform with the caption above.2 Appeal from a judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED

. Defendant-appellant Xavier Correa appeals from a judgment of conviction entered on March 21, 2016. Correa pleaded guilty to two coun ts of conspiracy to distribute and possess with intent to distribute crack cocaine and marijuana in vi olation of 21 U.S.C. § 846, and to discharging a firearm during and in relation to a drug traffickin g offense in violation of 18 U.S.C. §§ 924(c) and 2. Later, pursuant to a cooperation agreement, Correa al so pleaded guilty to a single count of using and carrying a firearm during and in relation to contro lled substances offenses, and causing the death of a person, in violation of 18 U.S.C. §§ 924(j) and 2. The District Court sentenced Correa to 220 months’ imprisonment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Correa argues only that his sentence was substantively unreasonable. We review a district
court’s sentence under a “deferenti al abuse-of-discretion standard.” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quota tion marks omitted). For claims of substantive unreasonableness, we consider “the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion,” and we “will . . . set aside a district court’s substantive determination only in exceptional cases where the tria l court’s decision cannot be located within the range of permissible decisions.” Id. at 189–90 (internal quotation marks omitted). Since in “the overwhelming majority of cases, a [Sentencing] Guidelines sentence will fall comfortably within” the range of permissible decisions, it is “difficult to find that a below-Guidelines sentence is unreasonable.” United States v. Perez-Frias , 636 F.3d 39, 43 (2d Cir. 2011) (internal quotation marks omitted).

Here, we conclude that Correa’s sentence was not substantively unreasonable. The District Court carefully considered the facts of the case and the information provided at sentencing, including Correa’s cooperation and his criminal cond uct. After conducting its analysis under the 18 U.S.C. § 3553(a) sentencing factors, it granted Co rrea a sentence that fell well below the applicable Guidelines range of life imprisonment and within the range of permissible decisions. That Correa wishes that the District Court had been even more lenient by giving more weight to his cooperation does not render his sentence substantively unreasonable. See United States v. Fernandez , 443 F.3d 19, 34 (2d Cir. 2006).3 CONCLUSION

We have reviewed all of the arguments raised by Correa on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the March 21, 2016 judgment of the District
Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk