20

- 482

- cr United States v. McFadden

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO 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 COU RT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 7 t h day of F e b r u a r y , two thousand twenty

- one

. 3 4 PRESENT: BARRINGTON D. PARKER
, 5 RAYMOND J. LOHIER, JR., 6 STEVEN J. MENASHI, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 UNITED STATES OF AMERICA, 10
11 Appellee
, 12
13

v. 14
15 MARKQUEZ MCFADDEN, AKA BUG OUT, No. 20

- 48 2

- cr 16 17 Defendant

- Appellant

. * 18

------------------------------------------------------------------ 19
20

* The Clerk of Court is directed to amend the caption as set forth above.2 1 FOR DEFENDANT

- APPELLANT : D ANIEL M. P EREZ , Law Offices 2 of Daniel M. Perez, Newton, 3 NJ 4
5 FOR APPELLEE: J OSHUA A. N AFTALIS , Assistant 6 United States Attorney 7 ( Andrea M. Griswold, Thomas 8 Mckay , Assistant United States 9 Attorneys, on the brief )
, for 10 Audrey Strauss , United States 11 Attorney for the Southern 12 District of New York, New 13 York, NY 14

15
Appea l from a judgment of the United States District Court for the 16

Southern District of New York ( Sidney H. Stein
, Judge ). 17

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 18

AND DECREED that the judgment of the D istrict C ourt is AFFIRMED. 19

Defendant

- Appellant Mark quez McFadden appeals from a judgment of 20

conviction entered by the District Court (Stein, J. ) following a jury trial in which 21

he was found guilty of conspiracy to commit Hobbs Act robbery, in violation of 22

18 U.S.C. § 1951, and using, carrying, and possessi ng a firearm, which was 23

brandished, during and in relation to the Hobbs Act robbery, in violation of 18 243 U.S.C. § 924(c) (1)(A)

. McFadden was initially sentenced principally to a term of 1

imprisonment of 120 months and a 5

- year term of supervised release. F ollowing 2

the Supreme Court’s decision in United States v. Davis , 139 S. Ct. 2319 (2019), 3

McFadden moved to vacate his § 924 (c) conviction and to remand the case for 4

resentencing, and the motion was granted. The District Court resentenced 5

McFadden principally to a term of imprisonment of 108 months and a 3

- year 6

term of supervised release. On appeal, McFadden challenges his new sentence as 7

procedurally and substantively unreasonable. We assume the parties’ familiarity 8

with the underlying facts and prior record of proceedings, to which we refer only 9

as necessary to explain our decision to affirm. 10

1. Procedural Reasonableness 11

We review questions of law as to the operation of the Sentencing 12

Guidelines de novo and findings of fact for clear error

. S ee United States v. 13

Vasquez , 389 F.3d 65, 68 (2d Cir. 2004). “When

. . . credibility determinations are 14

at issue, we give particularly strong deference to a district court finding.” United 15

States v. Murphy , 703 F.3d 182, 189 (2d Cir. 2012). 16

McFadden argues that the District Court improperly applied a six

- level 174 enhancement under § 2B3.1(b)(2)(B) of the Guidelines because the record does 1

not support a finding that he put a gun in the victim’s mouth during the robbery. 2

We disagree . At trial, the victim testified that McFadden put a gun in h er mouth 3

and threatened to kill he r , and another witness testified that , soon afterward, he 4

witnessed McFadden physically restrain this victim with his “ gun out

. ” App’x 5

at 94. The victim’s testimony was enough to support the District Court ’s factual 6

finding
, and we see no basis to question the District Court’s credibility 7

determination even though it determined that other portions of the victim’s 8

testimony

— primarily relating to her alleged participation in an illegal gambling 9

operation

— were untrue

. See United States v. Norman , 776 F.3d 67, 78 (2d Cir. 10

2015)

. We note, too, that at the resentencing hearing McFadden had ample 11

opportunity to challenge the finding as a basis for the enhancement

. 12

2. Substantive Reasonableness 13

We will “set aside a district cou rt’s substantive determination only in 14

exceptional cases where the trial court’s decision cannot be located within the 15

range of permissible decisions

. ” United States v. Cavera , 550 F.3d 180, 189 (2d 16

Cir. 2008) (en banc) (quotation marks omitted). McFadde n argues that his 175 sentence was substantively unreasonable primarily because the District Court 1

failed to account for mitigating factors or to properly consider s entencing 2

disparities between McFadden and his co

- defendants . We are not persuaded. In 3

imposing a below

- Guidelines sentence, the District Court adequately considered 4

several mitigating factors in McFadden ’s favor, such as his age, the support of his 5

family, and his remorse

. And t he District Court was not require d to consider 6

sentencing disparities between co

- defendants

. S ee United States v. Frias , 521 7

F.3d 229, 236 (2d Cir. 2008)

. For these reasons, we reject McFadden ’s argument 8

that his 108

- month sentence was substantively unreasonable. 9

We have considered McF adden ’s remaining arguments and conclude that 10

they are without merit. For the foregoing reasons, the judgment of the D istrict 11

C ourt is AFFIRMED. 12

FOR THE COURT: 13 Catherine O ’ Hagan Wolfe, Clerk of Court 14