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 COURT, 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. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 17 3 th day of February, two thousand twenty-one.

4

5 PRESENT: BARRINGTON D. PARKER,

6 RAYMOND J. LOHIER, JR.,

7 STEVEN J. MENASHI,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 UNITED STATES OF AMERICA,

11

12 Appellee,

13

14 v.

15

16 MARKQUEZ MCFADDEN, AKA BUG OUT, No. 20-482-cr

17

Defendant-Appellant.* 18

19 ------------------------------------------------------------------

20

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

1

2 FOR DEFENDANT-APPELLANT: DANIEL M. PEREZ, Law Offices 

3 of Daniel M. Perez, Newton, 

4 NJ 

5

6 FOR APPELLEE: JOSHUA A. NAFTALIS, Assistant 

7 United States Attorney

8 (Andrea M. Griswold, Thomas 

9 Mckay, Assistant United States 

10 Attorneys, on the brief), for

11 Audrey Strauss, United States 

12 Attorney for the Southern 

13 District of New York, New 

14 York, NY

15

16 Appeal from a judgment of the United States District Court for the 

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

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

19 AND DECREED that the judgment of the District Court is AFFIRMED. 

20 Defendant-Appellant Markquez McFadden appeals from a judgment of 

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

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

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

24 brandished, during and in relation to the Hobbs Act robbery, in violation of 18 
3

1 U.S.C. § 924(c)(1)(A). McFadden was initially sentenced principally to a term of 

2 imprisonment of 120 months and a 5-year term of supervised release. Following 

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

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

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

6 McFadden principally to a term of imprisonment of 108 months and a 3-year 

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

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

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

10 as necessary to explain our decision to affirm. 

11 1. Procedural Reasonableness 

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

13 Guidelines de novo and findings of fact for clear error. See United States v. 

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

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

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

17 McFadden argues that the District Court improperly applied a six-level 
4

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

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

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

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

5 witnessed McFadden physically restrain this victim with his “gun out.” App’x

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

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

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

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

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

11 2015). We note, too, that at the resentencing hearing McFadden had ample

12 opportunity to challenge the finding as a basis for the enhancement. 

13 2. Substantive Reasonableness

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

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

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

17 Cir. 2008) (en banc) (quotation marks omitted). McFadden argues that his 
5

1 sentence was substantively unreasonable primarily because the District Court 

2 failed to account for mitigating factors or to properly consider sentencing 

3 disparities between McFadden and his co-defendants. We are not persuaded. In 

4 imposing a below-Guidelines sentence, the District Court adequately considered 

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

6 family, and his remorse. And the District Court was not required to consider 

7 sentencing disparities between co-defendants. See United States v. Frias, 521 

8 F.3d 229, 236 (2d Cir. 2008). For these reasons, we reject McFadden’s argument 

9 that his 108-month sentence was substantively unreasonable. 

10 We have considered McFadden’s remaining arguments and conclude that 

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

12 Court is AFFIRMED. 

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk of Court