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

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. 

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

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