The Honorable John Gleeson, United States District Court for the Eastern * District of New York, sitting by designation. 09-1943-cr USA v. Catanzano



## UNITED STATES COURT OF APPEALS F OR 

## T HE 

## S ECOND 

## C IRCUIT 

## SUMMARY ORDER

R ULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMA RY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PERMIT TED AND IS GO VERNED BY F EDE RAL R ULE OF A PPE LLA TE P ROC EDU RE 32.1 AND TH IS COU RT ’ S L OCA L R ULE 32.1.1. W HEN CITING A SUMMAR Y O RDE R I N ADO CUM ENT FI LED WI TH THI S C OUR T , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATA BAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMA RY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PA RTY NO T R EPR ESE NTE D B Y C OUN SEL .



## At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 1 day of February, two thousand and ten. st 

## Present: PIERRE N. LEVAL,

RICHARD C. WESLEY,

Circuit Judges , JOHN GLEESON, District Judge . *



## __________________________________________________ UNITED STATES OF AMERICA, Appellee ,

- v. - (09-1943-cr) TODD CATANZANO, Defendant-Appellant .

__________________________________________________

## 2

For Appellant: FREDERICK H. COHN, Law Office of Frederick H. Cohn, New York, New York. For Appellee: MICHAEL D. MAIMIN, Assistant United States Attorney (Katherine Polk Failla, Assistant United States Attorney, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. Appeal from the United States District Court for the Southern District of New York (Berman, J.). 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 2 AND DECREED that the April 2, 2009 judgment of the United 3 States District Court for the Southern District of New York 4 is AFFIRMED . 5 Defendant appeals from a judgment of conviction arising 6 out of his guilty plea to one count of unlawfully conspiring 7 to distribute and possess with intent to distribute more 8 than fifty grams of methamphetamine, in violation of 21 9 U.S.C. § 846. Following his plea, defendant was sentenced 10 to five months’ imprisonment and five years’ supervised 11 release, with five months of his term of supervised release 12 to be served in a community confinement center. 13 Defendant’s sole argument in this appeal is that the 14 district court “f[a]iled to exercise the discretion required

## 3 1 of it” by “refusing to consider a sentence that does not 2 include imprisonment.” In essence, defendant urges us to 3 attribute procedural error to the sentence imposed by the 4 district court. See United States v. Johnson , 567 F.3d 40, 5 51-52 (2d Cir. 2009). 6 We decline the invitation. The district court’s 7 Guidelines calculation is undisputed, and there is no 8 question that the court considered the Guidelines on an 9 advisory basis only. We must also “presume, in the absence 10 of record evidence suggesting otherwise, that a sentencing 11 judge has faithfully discharged her duty to consider the 12 statutory factors” set forth in 28 U.S.C. § 3553(a). United 13 States v. Fernandez , 443 F.3d 19, 30 (2d Cir. 2006). 14 Finally, defendant’s argument proceeds on the basis of a 15 factual premise — i.e. , that the district court “refus[ed] 16 to consider” a non-incarceratory sentence — that is 17 expressly belied by the record. The sentencing judge stated 18 that he arrived at the sentence based on consideration of 19 “the combination of 18 U.S.C. Section 3553(a) factors . . . 20 including the nature and circumstances of the offense,” and 21 that “the reason . . . that there should not be a non22 incarcerative sentence has to do with the objectives of the

## 4 1 statute.” 2 In light of the Fernandez presumption, and based on the 3 transcript of the sentencing, we are satisfied that the 4 district court was sufficiently aware of the parameters of 5 its sentencing authority. Put differently, there is a 6 difference between a district court’s failure to acknowledge 7 the scope of its sentencing discretion, and a decision to 8 exercise that discretion in manner that is at odds with the 9 arguments presented by a criminal defendant. Our review of 10 the record indicates that this case falls squarely into the 11 latter category. Accordingly, the April 2, 2009 judgment of 12 the district court is AFFIRMED . 13 14 For the Court 15 Catherine O’Hagan Wolfe, Clerk 16 17 18