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09-3323-cr

United States of America v. Portee

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

4 New York, on the 25 day of May, two thousand ten. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROGER J. MINER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 09-3323-cr

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18 OMAR PORTEE, also known as OG Mack,

19 The Godfather of the Bloods, The Big

20 Homey, The Unknown, Anybody Killer,

21 The Almighty, The Panther, The Big

22 Lion, Omar Porter, Amar Porter, John

23 Varfley, Pierre Johnson, Ron Johnson,

24 and John Johnson,

25 Defendant-Appellant.

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2

1 FOR APPELLANT: Donna R. Newman, Law Office of Donna R.

2 Newman, Esq., New York, NY. 

3

4 FOR APPELLEE: Katherine Polk Failla, Assistant United

5 States Attorney (Elizabeth F. Maringer,

6 Assistant United States Attorney, on the

7 brief), for United States Attorney Preet

8 Bharara, United States Attorney’s Office

9 for the Southern District of New York,

10 New York, NY. 

11

12 Appeal from two orders of the United States District

13 Court for the Southern District of New York (Buchwald, J.).

14

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16 AND DECREED that the orders of the district court be

17 AFFIRMED. 

18

19 Defendant-appellant Omar Portee appeals from two orders

20 of the United States District Court for the Southern

21 District of New York (Buchwald, J.), which declined to

22 resentence Portee after remands from this Court.

23 Specifically, on April 24, 2006, the district court declined

24 to resentence Portee after remand pursuant to United States

25 v. Crosby, 397 F.3d 103 (2d Cir. 2005), and, on July 22,

26 2009, the district court declined to resentence Portee after

27 remand pursuant to United States v. Regalado, 518 F.3d 143

28 (2d Cir. 2008). We assume the parties’ familiarity with the

29 underlying facts, the procedural history, and the issues

30 presented for review.

31

32 Portee argues that in sentencing him the district court

33 procedurally erred by failing to (1) recalculate the

34 advisory Guidelines range, (2) properly consider his

35 background and character, and (3) address his arguments

36 about redundancies in the Guidelines calculation and an

37 unwarranted disparity between his sentence and the sentences

38 of his co-defendants. Portee further argues that (4) his

39 sentence of 50 years is substantively unreasonable. 

40 Following review for “reasonableness,” United States v.

41 Williams, 475 F.3d 468, 474 (2d Cir. 2007), Regalado, 518

42 F.3d at 149, which “is akin to review for abuse of

43 discretion,” United States v. Fernandez, 443 F.3d 19, 27 (2d

44 Cir. 2006), we conclude that Portee’s arguments lack merit. 

45 

46 1. The district court was not required to recalculate

47 Portee’s advisory Guidelines range. See Regalado, 518 F.3d
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1 at 149 (adopting the “Crosby mechanism” in which this Court

2 “remand[s] to give the district court an opportunity to

3 indicate whether it would have imposed a non-Guidelines

4 sentence knowing that it had discretion to deviate from the

5 Guidelines”); Crosby, 397 F.3d at 117 (explaining that a

6 Crosby remand is “not for the purpose of a required

7 resentencing, but only for the more limited purpose of

8 permitting the sentencing judge to determine whether to

9 resentence, now fully informed of the new sentencing

10 regime”). Moreover, the district court determined that even

11 using Portee’s requested 1:1 crack-to-powder ratio, the

12 advisory Guidelines range remained 360 months to life

13 imprisonment. We find no procedural error regarding this

14 issue. 

15

16 2. There is no indication in the record that the

17 district court failed to properly consider Portee’s

18 background and character. See Fernandez, 443 F.3d at 29

19 (“[W]e entertain a strong presumption that the sentencing

20 judge has considered all arguments properly presented to

21 her, unless the record clearly suggests otherwise. This

22 presumption is especially forceful when, as was the case

23 here, the sentencing judge makes abundantly clear that she

24 has read the relevant submissions and that she has

25 considered the § 3553(a) factors.”). At the initial

26 sentencing hearing, the district court observed “the absence

27 of much, if anything, on the positive side of the ledger” to

28 weigh against the factors it relied upon in reaching the 50-

29 year sentence:

30

31 Mr. Portee is the admitted founder of the Bloods,

32 a violent gang which operates both in prison and

33 on the street. I have also considered the amount

34 of violence and lawlessness that Mr. Portee has

35 encouraged and the degree to which he has

36 glorified violence and lawlessness and also the

37 frequency that Mr. Portee involved impressionable

38 young people in his life of crime, the disruption

39 he caused in his own neighborhood, the fact that

40 he himself has lived a life of crime, [and] the

41 pain that his crime has caused others . . . . 

42

43 Moreover, the district court expressly noted its

44 consideration of “the history and characteristics of the

45 defendant.” On the Crosby remand, the district court

46 explained that it had “explicitly considered the § 3553(a)

47 factors in determining that [Portee] was not deserving of a
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1 sentence in the low end of the Guidelines range,” reiterated

2 the seriousness of the crimes of conviction, underscored

3 Portee’s criminal history, and addressed Portee’s youth and

4 background at the time of certain criminal conduct. The

5 district court concluded that “[t]here are no facts

6 presented that alter the original, individualized calculus

7 reached. Although we are sympathetic to Portee’s health

8 problems, and understand that his family desires that his

9 sentence be reduced, this is an inappropriate case for

10 resentencing.” On both the Crosby and Regalado remands, the

11 district court quoted a portion of the sentencing transcript

12 excerpted in part above that expressly addressed Portee’s

13 background and characteristics. We find no procedural error

14 regarding this issue. 

15

16 3. Although the district court did not expressly

17 address every argument presented, the sentence imposed is

18 nevertheless reasonable. See Fernandez, 443 F.3d at 30

19 (“[N]o robotic incantations are required to prove the fact

20 of consideration, . . . and we will not conclude that a

21 district judge shirked her obligation to consider the §

22 3553(a) factors simply because she did not discuss each one

23 individually or did not expressly parse or address every

24 argument relating to those factors that the defendant

25 advanced.” (internal quotation marks and citations

26 omitted)). On the Crosby remand, the district court quoted

27 a portion of the sentencing transcript acknowledging that it

28 expressly considered “the traditional and statutory factors

29 of the nature and circumstances of the offense, the history

30 and characteristics of the defendant and the need for a

31 sentence to reflect the seriousness of the offense, to

32 promote respect for the law and provide just punishment for

33 the offense, to afford adequate deterrence to criminal

34 conduct, and to protect the public from further crimes by

35 this defendant.” The district court also “reiterate[d] the

36 specific factors that were considered in arriving at the

37 fifty-year sentence that was imposed,” including “the

38 seriousness of the crimes for which [Portee] was convicted”

39 and “Portee’s criminal history.” Regarding Portee’s

40 unwarranted disparity sub-argument, the district court

41 expressly noted its consideration of “the need for

42 proportionality in Mr. Portee’s sentence and that of his co43 defendants.” These explanations and observations reveal

44 that the district court sufficiently “considered the

45 parties’ arguments and ha[d] a reasoned basis for exercising

46 [its] legal decisionmaking authority.” Rita v. United
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1 States, 551 U.S. 338, 356 (2007). We find no procedural

2 error regarding this issue. 

3

4 4. The 50-year sentence is substantively reasonable. 

5 The factors on which the district court relied--the

6 seriousness of the crimes of conviction, deterrence, and

7 protection of the public--“can bear the weight assigned

8 [them] under the totality of the circumstances in the case.” 

9 United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008)

10 (en banc). Our review of the record indicates that the

11 district court considered the factors set forth in 18 U.S.C.

12 § 3553(a) and carefully determined that a sentence of 50

13 years--within the Guidelines range of 30 years to life--was

14 appropriate. Accordingly, this is not an “exceptional

15 case[] where the trial court’s decision cannot be located

16 within the range of permissible decisions.” Id. at 189

17 (internal quotation marks omitted). We find no substantive

18 error regarding the 50-year sentence. 

19

20 We have considered all of Portee’s contentions on this

21 appeal and have found them to be without merit. 

22 Accordingly, the orders of the district court are hereby

23 AFFIRMED. 

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26 FOR THE COURT:

27 CATHERINE O’HAGAN WOLFE, CLERK

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