1 18-2255-cr United States v. Saunders 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 PROC EDURE 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 ELEC TRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23 rd day of January, two thousand nineteen. Present: ROBERT A. KATZMANN, Chief Judge , GERARD E. LYNCH, Circuit Judge , LEWIS A. KAPLAN, District Judge

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UNITED STATES OF AMERICA, Appellee , v. No. 18-2255-cr PHILLIP SAUNDERS, EZ, aka DIRTY PHIL, Defendant-Appellant

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For Defendant-Appellant: J OHN S. W ALLENSTEIN , Law Office of John S. Wallenstein, Garden Cit y , New York.

* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.

1 The Clerk of Court is directed to amend the caption as above.2 For Appellee: M ICHAEL R. M AFFEI , Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief ), Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brookl y n, New Yor k
Appeal from a judgment of the United States Dist rict Court for the East ern District of New York (Feuerstein, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-Appellant Phillip Saunders appeals from a judgment of conviction entered on July 24, 2018, by the United States District Court for the Eastern District of New York (Feuerstein,
J. ), upon plea of guilty to one count of dischargin g firearms during crimes of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). We assume the part ies’ familiarity with th e underlying facts, the procedural history of the cas e, and the issues on appeal. Saunders argues that the sentence imposed by the district court of 144 months’ imprisonment was procedurally unrea sonable. “A district court commi ts procedural error when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to cons ider the § 3553(a) factor s, selects a sentence based on clearly erroneous facts, or fails ad equately to explain the chosen sentence.” United
States v. Genao , 869 F.3d 136, 140 (2d Cir. 2017). 2 As Saunders failed to raise any procedural

2 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, emphases and citations.3 objections during sentencing, we review for plain error. See United States v. Wernick , 691 F.3d 108, 113 (2d Cir. 2012). While the Guidelines range calculated by the Probation Department and accepted by the district court differed from the esti mate in Saunders’s plea agreement, 3 the district court clearly stated the Guidelines range. There was no disput e at sentencing as to the correctness of the Guidelines range calculation, nor do es Saunders dispute it on appeal. 4 The district court was also clear that it had considered th e § 3553(a) sentencing factors. C ontrary to Saunders’s arguments, a district judge need not “r ecite every 3553(a) argument advanced by a defendant.” United States v. Young , 811 F.3d 592, 599 (2d Cir. 2016). “Rather, we presume that the judge properly considered the sentencing factors even in the abse nce of protracted discussion pertaining to each of the factors and all of th e defendant's contentions.” Id. Saunders argues that the district court imprope rly considered his age in sentencing him to 144 months’ imprisonment, rather than the 120 months’ imprisonment that his codefendants received, and, in doing so, crea ted an impermissible sentencing disparity between him and his codefendants. However, the district court perm issibly found that Saunders ’s codefendants, both of whom were close to ten y ears younger than he is, were entitled to a downward departure because of their youth that Saunders, who was 31 years old at the time of sentencing, could not claim. See United States v. Singh , 877 F.3d 107, 117 n.5 (2d Cir. 2017) (recognizing youth as a

3 The plea agreement calcul ated Saunders’s Guidelines range as 120 months’ imprisonment. However, Probation subsequent ly determined that Saunders was a career offender, which raised th e Guidelines range to 26 2-327 months’ imprisonment.

4 Defense counsel initially dis puted the Probation Department’s application of the career offender enhancement but abandoned that dispute at sentencing af ter the Probation Department’s further explanation of its calcula tion, arguing at senten cing that a Guidelines sentence would be too high, not that the Guidelines ra nge as calculated was incorrect.4 mitigating factor); U.S.S.G. § 5H1.1 (youth relevant in determining whether a downward departure is warranted). Gran ting a lower sentence to one co defendant based on a mitigating factor that another codefendant does not possess is not a penalizati on of the other, as we do not “equate the possibility of leniency with impermissible punishment.” United States v. Parker , 903 F.2d 91, 105 (2d Cir. 1990). Moreover, “a dispar ity between non-similarly situated codefendants is not a valid basis for a cl aim of error under 18 U.S.C. § 3553(a)(6).” United States v. Fernandez , 443 F.3d 19, 28 (2d Cir. 2006) , abrogated on other grounds by Rita v. United
States , 551 U.S. 338 (2007). The district court di stinguished between Saunders and his codefendants based on his age, criminal history, and role in the offense. 5 Saunders also argues that the sentence impos ed by the district court is substantively unreasonable, primarily reiterati ng his objection that his codefenda nts received lower sentences. This Court “consider[s] the substantive reasona bleness of the sentence imposed under an abuseof-discretion standard.” Gall v. United States , 552 U.S. 38, 51 (2007). We find error only if the sentence “cannot be located within th e range of permissible decisions.” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008). “[I]n the overwhelmi ng majority of cases, a Guidelines sentence will fall comfortably within the broad range of sent ences that would be reas onable in the particular circumstances.” United States v. Friedberg , 558 F.3d 131, 137 (2d Cir. 2009). “It is therefore difficult to find that a below-Guid elines sentence is unreasonable.” United States v. Perez-Frias , 636 F.3d 39, 43 (2d Cir. 2011).

5 The PSR, which the district court adopted, indicates that two people were seriously injured in the shooting that was the basi s for Saunders’ convictions, while Saunders’s codefendants were convicted only of participatin g in shootings in which no one was injured. While one of Saunders’s codefendants was also a career offender with the same Guidelines range, the district court noted that that defendan t was the youngest of the three in explaining its downward departure in his sentence.5 Here, the district court did not abuse its di scretion by imposing on Saunders a sentence of 144 months’ imprisonment, well below the Guide lines range of 262 to 32 7 months, considering his age, criminal history, and offense conduct. A ccordingly, we conclude that the sentence the district court imposed was within the range of per missible decisions. We have considered all of Saunders’s remaini ng contentions on appeal and have found in them no basis for reversal. Accordingly, th e judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk