10-0241-cr
     United States v. Ortiz


                                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 THIS COURT’S LOCAL RULE 32.1.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 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.

 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3   on the 17th day of December, two thousand and ten.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               BARRINGTON D. PARKER,
 7               RICHARD C. WESLEY,
 8                     Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                                    Appellee,
14                       -v.-                                                       10-0241-cr
15
16   JUAN ORTIZ, also known as Nano,
17
18                                                    Defendant-Appellant.
19
20
21   For Appellee:              Harold H. Chen, Assistant United States Attorney (David B. Fein, United
22                              States Attorney, Elizabeth A. Latif, Assistant United States Attorney, of
23                              counsel), District of Connecticut, for United States.
24
25   For Appellant:             Robert C. Mirto, Law Offices of Mirto & Rasile, LLC, West Haven, CT,
26                              for Juan Ortiz.
27
28
29   Appeal from the United States District Court for the District of Connecticut (Hall, J.).
30
31
 1   ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
 2   DECREED that the judgment of said district court be and hereby is AFFIRMED.
 3
 4          Juan Ortiz appeals from a judgment of conviction entered by the United States District
 5   Court for the District of Connecticut (Hall, J.) on January 20, 2010. Ortiz pleaded guilty to
 6   conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of crack
 7   cocaine. The district court imposed the mandatory minimum sentence under 21 U.S.C. §
 8   841(b)(1)(A) of 120 months in prison and five years of supervised release, and ordered Ortiz to
 9   pay a $100 special assessment. We assume the parties’ familiarity with the underlying facts,
10   procedural history, and issues presented on appeal.

11           Ortiz appeals on a single issue: that the parsimony clause in 18 U.S.C. § 3553(a)
12   conflicts with the mandatory minimum sentencing provisions in Section 841(b). However, a
13   prior panel of this Court rejected this argument as a matter of law. United States v. Samas, 561

, 110-11 (2d Cir. 2009) (per curiam) (holding that Section 3553(a) “cannot be
15   understood to authorize courts to sentence below minimums specifically prescribed by Congress”
16   in Section 841(b)) (citation and quotation marks omitted). This remains the law of the Circuit,
17   unless it is “overruled either by an en banc panel of our Court or by the Supreme Court.” United
18   States v. Wilkerson, 

, 732 (2d Cir. 2004).

19          We have considered all of Ortiz’s arguments and find them to be without merit. For the
20   foregoing reasons, the judgment of the district court is AFFIRMED.
21
22
23                                                       FOR THE COURT:
24                                                       Catherine O’Hagan Wolfe, Clerk
25




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