No. 06-0942-cr.United States Court of Appeals, Second Circuit.
October 5, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the Eastern District of New York (John Gleeson, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment dated January 26, 2006, and entered on February 17, 2006, is hereby AFFIRMED.

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APPEARING FOR APPELLEE: CHARLES S. KLEINBERG, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, New York.



[1] The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.

By order filed August 8, 2005, this court summarily affirmed a judgment entered on June 30, 2004, after a jury trial in the Eastern District of New York, which convicted defendant Jason Vale of three counts of criminal contempt based on his persistent promotion and sale of Laetrile as a cure for cancer in defiance of court orders. United States v. Vale, 140 Fed. Appx. 302 (2d Cir. 2005). By that same summary order, we remanded Vale’s case for resentencing in light of United States v.Booker, 534 U.S. 220 (2005), and United States v. Fagans, 406 F.3d 138
(2d Cir. 2005). On this appeal, Vale challenges the reasonableness of the 60-month sentence imposed on remand, arguing that the district court erred in (1) making a judicial finding of fraud to calculate his Sentencing Guidelines range, (2) failing to give due consideration to the sentencing factors specified in 18 U.S.C. § 3553(a), and (3) imposing a sentence greater than necessary to achieve the sentencing objectives specified in

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§ 3553(a). We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

In the aftermath of Booker, appellate review of sentences is limited to reasonableness, 534 U.S. at 264; accord Rita v. United States, 127 S. Ct. 2456, 2459 (2007). While this standard has both substantive and procedural components, it is best analogized to review for abuse of discretion in that an appellate panel does not substitute its judgment for that of the sentencing judge. See United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006); United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir. 2005).

1. The Judicial Finding of Fraud in Calculating Vale’s Sentencing Guidelines Range

_____To the extent Vale contends that his sentence is procedurally unreasonable because the district court made a judicial finding of fraud in calculating his Sentencing Guidelines range, his argument is foreclosed by our decision in United States v. Garcia, which holds that “[j]udicial authority to find facts relevant to sentencing by a preponderance of the evidence survives Booker.” 413 F.3d 201, 220 n. 15 (2d Cir. 2005); accord United States v. Florez, 447 F.3d 145, 156 (2d Cir. 2006) (collecting cases). Vale attempts to distinguish his case from these precedents by arguing that the challenged fraud finding reflected an offense distinct from the contempt crime found proved by the jury. His argument is unconvincing.

Precisely because contempt is a crime that can take various forms, the contempt Guideline, U.S.S.G. § 2J1.1, requires courts to employ the most analogous offense level in calculating a defendant’s sentencing range. Vale does not dispute that fraud may be an

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analogous offense for contempt. See U.S.S.G. § 2B1.1 (fraud Guideline). Rather, he argues that such an analogy was not supported by a preponderance of the evidence in his case. We disagree. Record evidence convincingly shows that Vale went to considerable lengths — utilizing shell corporations, out-of-state mail drops, and toll free numbers — to conceal his knowing and deliberate violations of court orders from the district court, the Food and Drug Administration, and his customers. Further, in contumaciously hawking his products, Vale persisted in making false and extravagant claims about Laetrile’s ability to cure cancer.

Thus, we easily conclude that the law and the facts support the district court’s use of the fraud Guideline to calculate Vale’s Sentencing Guidelines range. Further, we conclude that such use did not raise the Sixth Amendment concern identified in Booker because the district court recognized that the Guidelines were only advisory and, indeed, imposed a sentence well below the calculated range.

2. Consideration of § 3553(a) Factors

Vale further challenges the procedural reasonableness of his sentence by arguing that the district court failed to give proper consideration to all § 3553(a) factors in imposing sentence. The point merits little discussion.

In imposing sentence, district courts are not required to engage in “robotic incantations” of the § 3553(a) factors. United States v.Fernandez, 443 F.3d at 29-30. As long as nothing in the record indicates a “misunderstanding . . . or misperception about their relevance, we will accept that the requisite consideration has occurred.” United States v.Fleming, 397 F.3d 95, 100 (2d Cir. 2005). No such concern arises in this case because the

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sentencing judge expressly stated that the § 3553(a) factors were his “guide” in resentencing Vale. Not only did he specifically reference aggravating factors such as the seriousness of the crime of conviction, its sophistication, the defendant’s use of family members in its commission, and his exploitation of vulnerable victims, he considered the mitigating factor of Vale’s misguided but genuine belief that Laetrile was of some use in treating cancer in ultimately imposing a non-Guidelines sentence. This record demonstrates the requisite statutory consideration.

3. The Parsimony Clause

Equally meritless is Vale’s conclusory contention that his sentence is substantively unreasonable because it violates § 3553(a)’s parsimony clause. Nothing in the record indicates that the district court failed to understand and consider the requirement that it “shall impose a sentence sufficient, but not greater than necessary, to comply with” the statute’s stated sentencing objectives. 18 U.S.C. § 3553(a); United States v.Williams, 475 F.3d 468, 476-77 (2d Cir. 2007); United States v.Ministro-Tapia, 470 F.3d 137, 141-43 (2d Cir. 2006). Absent such misunderstanding, we expect to encounter substantively unreasonable sentences only “infrequently.” United States v. Fleming, 397 F.3d at 100. This is not one of those rare cases.

The judgment of conviction entered on resentencing is hereby AFFIRMED.

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