13-4867-cr
United States v. Colon


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

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of November, two thousand and fifteen.

Present:
                PIERRE N. LEVAL,
                PETER W. HALL,
                GERARD E. LYNCH,

                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

                v.                                   No. 13-4867-cr

EDWIN COLON,

                  Defendant-Appellant.
____________________________________________________

For Defendant-Appellant:      AMY ADELSON, Dershowitz, Eiger & Adelson, P.C., New York,
                              NY.

For Appellee:           PAUL D. SILVER, Assistant United States Attorney, for Richard S.
                        Hartunian, United States Attorney for the Northern District of New
                        York, Albany, NY.
____________________________________________________


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       Appeal from a judgment of the United States District Court for the Northern District of

New York (Sharpe, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment is AFFIRMED.

       Defendant Edwin Colon pleaded guilty pursuant to a plea agreement to one count of

possession of heroin with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Although

the plea agreement contemplated a guidelines sentencing range of 41 to 51 months, the court

determined that Colon was a Career Offender and sentenced him to 188 months imprisonment, at

the bottom of the Career Offender Guideline range. We assume the parties’ familiarity with the

facts, procedural history, and issues presented on appeal.

        “A sentencing judge has very wide latitude to decide the proper degree of punishment

for an individual offender and a particular crime.”1 United States v. Cavera, 

, 188

(2d Cir. 2008). We will “set aside a district court’s substantive determination only in exceptional

cases where the trial court’s decision ‘cannot be located within the range of permissible

decisions.’” 

(quoting United States v. Rigas, 

, 238 (2d Cir. 2007)). “This

degree of deference is only warranted, however, once we are satisfied that the district court

complied with the Sentencing Reform Act’s procedural requirements.” 

that Colon’s sentence was procedurally reasonable. “[W]e presume that a

sentencing judge has faithfully discharged her duty to consider the statutory factors.” United

States v. Verkhoglyad, 

, 129 (2d Cir. 2008) (internal quotation marks omitted).

Although Colon contends that the district court did not consider his argument for a variance


       1
         The parties dispute whether the proper standard of review is plain error or abuse of
discretion. We need not address the parties’ arguments because the outcome would be the same
under either standard.

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based on the factors set forth in 18 U.S.C. § 3553(a), the court heard arguments at sentencing

regarding Colon’s troubled upbringing, drug addiction issues, and his rehabilitation efforts. The

court considered Colon’s “incessant” history of criminal behavior, beginning at age sixteen, to be

significant, and elected to treat Colon as a Career Offender.2 Joint Appendix 114. The court

noted that Colon had continued to engage in criminal conduct even while he was under court

supervision. Based on these considerations, the court determined that the “appropriate sentence”

was at the bottom of the Career Offender Guidelines range. JA 114. Although the court could

have elaborated further, “we do not require robotic incantations that the district court has

considered each of the § 3553(a) factors,” 

(internal quotation omitted),

and its explanation was sufficient.

       In addition, the sentence was substantively reasonable. In particular, the sentence

reflected Colon’s prolonged criminal history since his teenage years which, the court determined,

outweighed the evidence of his rehabilitation. Although the sentence was severe, we cannot say

that it “was shockingly high, . . . or otherwise unsupportable as a matter of law.” United States v.

Rigas, 

, 123 (2d Cir. 2009).

       For these reasons, the judgment is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




       2
           Although Colon contends that the Career Offender Guideline substantially
overrepresents his criminal history, he has never disputed that his criminal history meets the
criteria for career offender status. See USSG § 4B1.1.

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