08-3490-cr
     United States v. Torres

 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
 7   SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 8   BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
 9   32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
10   IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
11   EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
12   “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
13   THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
14   ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
15   SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
16   ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
17   HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
18   AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
19   REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
20   THE ORDER WAS ENTERED.
21
22          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
23   Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
24   of December, two thousand nine.
25
26   Present:
27              HON. PIERRE N. LEVAL,
28              HON. BARRINGTON D. PARKER,
29              HON. RICHARD C. WESLEY,
30                         Circuit Judges,
31
32   ________________________________________________
33
34   United States of America,
35
36              Appellee,
37
38                     v.                                            No. 08-3490-cr
39
40   Gilbert Torres,
41
42              Defendant-Appellant.
43
44   ________________________________________________
 1
 2   For Defendant-Appellant:          LAWRENCE GERZOG , New York, New York
 3
 4   For Appellee:              LEV L. DASSIN , Acting United States Attorney for the Southern
 5                              District of New York (Iris Lan & Daniel A. Braun, Assistant
 6                              United States Attorney, of counsel), New York, New York
 7   ________________________________________________
 8
 9           Appeal from the United States District Court for the Southern District of New York
10   (Cote, J.).
11
12          ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

13   DECREED that the judgment of the district court dated July 11, 2008, be and hereby is

14   AFFIRMED.

15          Gilbert Torres appeals from his sentence of 151 months incarceration followed by 3 years

16   supervised release, imposed by the district court following his plea of guilty to one count of

17   conspiracy to distribute and possess with intent to distribute methylenedioxymethamphetamine

18   (“MDMA”) under 21 U.S.C. § 846. Torres argues that his sentence is both procedurally and

19   substantively unreasonable. We assume the parties’ familiarity with the facts and the record of

20   prior proceedings, which we reference only as necessary to explain our decision.

21          Torres makes three arguments on appeal. First, he claims that the district court

22   committed procedural error because although it determined that Torres’s sentence was

23   “reasonable,” it did not specifically invoke the requirement, under the so-called “parsimony

24   clause” of 18 U.S.C. § 3553(a), that a sentence be “sufficient, but not greater than necessary.”

25   Second, he asserts that the district court committed procedural and substantive error when it

26   determined, based on his criminal history, that deterrence required a more severe sentence,



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 1   notwithstanding evidence that certain psychiatric conditions contributed to his past crimes.

 2   Third, Torres argues that the district court committed procedural error in failing to consider

 3   whether he should receive a downward departure under § 4A1.3 of the Sentencing Guidelines on

 4   the ground that his criminal history calculation overstates the likelihood of his recidivism.

 5          We consider all of these arguments to be without merit. First, although the district court

 6   did not refer to the parsimony clause of § 3553(a), it need not have done so. Cf. United States v.

 7   Banks, 

, 190 (“[T]here is no requirement that the court mention the required factors

 8   [under § 3553(a)], much less explain how each factor affected the court's decision.”). Second,

 9   although Torres claims that the district court committed procedural error by failing to consider

10   his mental health, the sentencing transcript shows that the court explicitly considered the

11   evidence of Torres’s psychiatric condition when determining that deterrence required the

12   sentence it imposed. We also find that this factor “can bear the weight assigned to it,” United

13   States v. Cavera, 

, 191 (2d Cir. 2008) (en banc), and therefore the district court’s

14   consideration of it is not substantively unreasonable. Finally, “a district court’s refusal to depart

15   from the Guidelines is [ordinarily] not appealable.” United States v. Duarte, 

, 207

16   (2d Cir. 2003). Although we will consider such an appeal if the district court incorrectly

17   believed it was without the power to grant a departure, 

the record indicates that the

18   district court suffered from such a misapprehension.

19

20          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

21


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1    FOR THE COURT:
2    CATHERINE O’HAGAN WOLFE, CLERK
3
4    By:
5
6    ____________________________________




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