U.S. v. SANCHEZ, 370 Fed.Appx. 151 (2nd Cir. 2010)

Nos. 09-0369-cr (L); 09-0428-cr (CON).United States Court of Appeals, Second Circuit.
March 19, 2010.

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Appeals from the United States District Court for the Southern District of New York (Rakoff, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that: (1) the government’s motion for summary affirmance of the judgment of conviction of defendant-appellant Sanchez is GRANTED; (2) the Anders motion filed by Sanchez’s counsel is GRANTED; and (3) the judgment of conviction of defendant-appellant Zarate is AFFIRMED.

John M. Rodriguez, New York, NY, for Appellant Ismael Jimenez Sanchez.

Edgar Andrew St. Laurent (Brian Sheppard, on the brief), New Hyde Park, NY, for Appellant Pineda Zarate.

Sarah Y. Lai, Assistant United States Attorney (Alexander J. Willscher, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

PRESENT: PIERRE N. LEVAL, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges.

SUMMARY ORDER
Defendants-appellants Edgar Pineda Zarate and Ismael Jimenez Sanchez appeal their respective convictions arising out of their separate guilty pleas to narcotics-related offenses. Zarate and Sanchez each pled guilty to one count of conspiring to distribute and possess with intent to distribute one or more kilograms of heroin, in violation of 21 U.S.C. § 846. Zarate also pled guilty to an additional count of conspiring to import into the United States one or more kilograms of heroin, in violation of 21 U.S.C. § 963. Zarate was sentenced to 108 months’ imprisonment, 5 years’ supervised release, and a $200 special assessment. Sanchez was sentenced to 72 months’ imprisonment, 3 years’ supervised release, and a $100 special assessment. We assume the parties’ familiarity with the underlying facts and remaining procedural history.

With respect to Sanchez, his counsel has moved for permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there is no colorable issue for appeal, and the government has filed a motion seeking either dismissal of his appeal or summary affirmance of his conviction. Having reviewed the submissions relating to these motions, we agree with Sanchez’s counsel and the government that there are no non-frivolous issues that could be raised by Sanchez on appeal. Accordingly,

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the Anders motion is granted and Sanchez’s conviction is affirmed.

Next, Zarate challenges the 108-month term of imprisonment that he received as part of his sentence. Zarate acknowledges that this term of incarceration fits comfortably within the applicable Sentencing Guidelines range. Nevertheless, he asserts that the below-Guidelines term of imprisonment received by his co-defendant, Sanchez, caused his sentence to be marred by unwarranted sentencing disparity. See 18 U.S.C. § 3553(a)(6). However, the district court gave reasons for its more lenient sentence of Sanchez. In light of those reasons, the two defendants were not similarly situated. The court was not obligated under the principle of procedural reasonableness to give any more extensive explanation than it gave. See United States v. Fernandez, 443 F.3d 19, 29-30 (2d Cir. 2006). Therefore, we are unpersuaded that Zarate’s sentence was substantively or procedurally unreasonable.

We have considered each of appellants’ arguments and find them to be without merit. Accordingly, the Anders motion filed by Sanchez’s counsel is GRANTED, the government’s motion for summary affirmance as to Sanchez isGRANTED, and the district court’s judgments of conviction relating to both Sanchez and Zarate areAFFIRMED.