1

11-2562

United States v. Gallagher

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 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

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 19th 4 day of April, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 BARRINGTON D. PARKER,

9 PETER W. HALL,

10 Circuit Judges.

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 11-2562

17

18 THOMAS E. GALLAGHER, 

19 Defendant-Appellant,

20

21 SYED A. BABAR, AKA ALI, AKA ASAD,

22 DAVID AVIGDOR, NATHAN M. RUSSO, REHAN

23 QAMAR, MOHAMMAD SALEEM, RAB NAWAZ,

24 MORRIS I. OLMER, WENDY WERNER,

25 MARSHALL ASMAR,

26 Defendants.

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2

1 FOR APPELLANT: Marjorie M. Smith, Law Office of

2 Marjorie M. Smith, Piermont,

3 N.Y.

4

5 FOR APPELLEE: Susan L. Wines, Eric J. Glover,

6 Assistant United States

7 Attorneys, Sandra S. Glover,

8 Assistant United States Attorney

9 (of counsel), for David B. Fein,

10 United States Attorney for the

11 District of Connecticut, New

12 Haven, Conn. 

13

14 Appeal from a judgment of the United States District

15 Court for the District of Connecticut (Thompson, J.).

16

17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18 AND DECREED that the judgment of the district court be

19 AFFIRMED. 

20

21

22 Thomas E. Gallagher appeals from a judgment of

23 conviction for one count of making false statements to the

24 federal government in violation of 18 U.S.C. § 1001. We

25 assume the parties’ familiarity with the underlying facts,

26 the procedural history, and the issues presented for review.

27

28 Gallagher argues that his within-Guidelines 60-month

29 sentence--the statutory maximum--is unreasonable. 

30 Reasonableness review “involves consideration not only of

31 the sentence itself, but also of the procedures employed in

32 arriving at the sentence. Reasonableness review does not

33 entail the substitution of our judgment for that of the

34 sentencing judge. Rather, the standard is akin to review

35 for abuse of discretion.” United States v. Fernandez, 443

36 F.3d 19, 26-27 (2d Cir. 2006) (citations omitted). 

37

38 Gallagher was an essential party in a four-year-long

39 mortgage fraud conspiracy that resulted in $3 million in

40 losses to various lenders and the Federal Housing

41 Administration. He continued the scheme after receiving

42 warnings about his conduct, and he used his position of

43 influence in the community to vouch for the character of a

44 co-conspirator. As such, his sentence “can[] be located
3

1 within the range of permissible decisions.” United States

2 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)

3 (internal quotation marks omitted) (discussing review for

4 substantive reasonableness).

5 

6 Gallagher’s contentions that the court did not

7 adequately justify his sentence are also unavailing. After

8 the court analyzed Gallagher’s arguments for a downward

9 departure and the government’s arguments for a within10 Guidelines sentence, the court concluded that the

11 “aggravating facts and circumstances here [do] not simply

12 outweigh the positives, . . . they overwhelm them.” See

13 also United States v. Jones, 531 F.3d 163, 174 (2d Cir.

14 2008) (“Sentencing is not, after all, a precise science. 

15 Rarely, if ever, do the pertinent facts dictate one and only

16 one appropriate sentence.”) (citation omitted). 

17

18 

19 Finding no merit in Gallagher’s remaining arguments, we

20 hereby AFFIRM the judgment of the district court.

21

22

23 FOR THE COURT:

24 CATHERINE O’HAGAN WOLFE, CLERK

25