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09-3323-cr United States of America v. Portee



### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT



# SUM MARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED

ON O RA F T ER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL R ULE 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

PRESENT: DENNIS JACOBS, 

### 6 7 Chief Judge, 

### 8 ROGER J. MINER, 

### 9 RICHARD C. WESLEY, 

### 10 Circuit Judges. 

### 11 12 - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, 

### 13 Appellee, 

### 14 15 16 -v.- 09-3323-cr 

### 17 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. 

### 26 - - - - - - - - - - - - - - - - - - - -X 

### 272

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

### 1 Newman, Esq., New York, NY. 

### 2 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 

### app eal s f romtw o o rde rs 20 of the United States District Court for the Southern 

### 21 District of New York (Buchwald, J.) 

### , whic h d ecl ine d t o 22 res ent enc e P ort ee aft er remand s f romth is Cou rt. 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.3d3 

### 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 whetherto 

### 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 a4 

### 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 co

### 43 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. United5 

### 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

. 

### 24 25 26 FOR THE COURT: 

### 27 CATHERINE O’HAGAN WOLFE, CLERK 

### 28