No. 09-3776-cr.United States Court of Appeals, Second Circuit.
September 23, 2010.
Appeal from the United States District Court for the Eastern District of New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that the judgment of the District Court beAFFIRMED.
Sally Wasserman, Law Office of Sally Wasserman, Esq., New York, NY, for Appellant.
Stephen J. Meyer, Assistant United States Attorney, of counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.
PRESENT: ROSEMARY S. POOLER, RICHARD C. WESLEY, GERARD E. LYNCH, Circuit Judges.
Jose Velasquez (“Appellant”) appeals from a judgment of the United States District Court for the Eastern District of New York (Cogan, J.), entered on September 3, 2009 and sentencing him to 160 months imprisonment followed by five years of supervised release. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We review the sentence imposed by the District Court for both substantive and
procedural reasonableness. United States v. Cavern, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). “Reasonableness review is akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion, committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact.” United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotation marks and alterations omitted).
Appellant argues that his sentence was procedurally unreasonable because the District Court allowed Appellant’s criminal history to “overshadow” the other 18 U.S.C. § 3553(a) factors. We disagree. There is a “strong presumption that the District Court faithfully performed its statutory obligation to consider the § 3553(a) factors.”United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). Appellant has presented no evidence to rebut this presumption. Moreover, upon reviewing the record, we conclude that the District Court did, in fact, fully consider the statutory factors and did not afford undue weight to Appellant’s criminal history. Indeed, the District Court explicitly stated that it considered all the factors in 3353(a) and it discussed several of them at length at the sentencing proceeding. Accordingly, we conclude that the District Court committed no procedural error.
Appellant next argues that his sentence was substantively unreasonable. Substantive review of a sentence is akin to “consideration of a motion for a new criminal jury trial, which should be granted only when the jury’s verdict was `manifestly unjust,’ and to the determination of intentional torts by state actors, which should be found only if the alleged tort `shocks the conscience.'” United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (citing United States v. Rigas, 583 F.3d 108, 122-23 (2d Cir. 2009)). Here, the District Court explained in detail its reasons for imposing the sentence, considered at length the mitigating factors Appellant presented, and ultimately imposed a below-guideline sentence. For these reasons, we conclude that the sentence was not substantively unreasonable.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.