United States v. Folkes

Feb 7, 2012

11-984-cr

Versions:

NCB claims that a clause in the Plan that sets all recovery equal to a certain computation means that the MFN Clause can never be triggered by action of the Enron Debtors, so the only remaining debtors who could act separately from the Enron Debtors, and whose collective action could be referenced by the Enron Plan, would be the Dabhol Debtors. This argument is unsound for several reasons, not the least of which is that the Enron Plan specifically excludes the Dabhol Debtors from its definition of the term “Debtors.”⁴ We therefore affirm the judgment of the District Court on the ground that the decision of the Dabhol Debtors to pay 100% of the disputed claims did not constitute the collective action necessary to trigger the MFN Clause.

CONCLUSION

Having conducted an independent rеview of the record, and without necessarily commenting on every aspect of the District Court‘s careful Memorandum and Order of March 31, 2011, we AFFIRM thе judgment of the District Court.

Eileen F. Shapiro, Esq., Brooklyn, NY, for Appellant.

William D. Sarratt (Jo Ann M. Navickas, Allon Lifshitz, on the brief), Assistant United States Attorneys, Of Counsel, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

PRESENT: B.D. PARKER, REENA RAGGI and RAYMOND J. LOHIER, JR., Circuit Judges.

SUMMARY ORDER

On remand from this court, see United States v. Folkes, 622 F.3d 152, 158 (2d Cir. 2010) (identifying error in Guidelines calculation), Walford Folkes was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sentenced to 36 months’ imprisonment for illegal reentry, see 8 U.S.C. § 1326(a), and a consecutive 24-month prison term for aggravated identity theft, see 18 U.S.C. § 1028A. Folkes now appeals the 36-month prison term, a variance from his undisputed Guidelines range of 12 to 18 months’ imprisonment, as procedurally and substantively unreasonable. In reviewing Folkes‘s sentenсe “under a ‘deferential abuse-of-discretion standard,’ ” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)), we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Procedural Error

Folkes submits that various procedural errors render his illegal reentry sentence unreasonable. First, he faults the district court for failing to determine his applicable Criminal History Category pursuant to U.S.S.G. § 4A1.1 before departing therefrom pursuant to U.S.S.G. § 4A1.3. Further, he complains that the district court failed to follow the departure procedures outlined in U.S.S.G. § 4A1.3. See United States v. Cavera, 550 F.3d at 190 (identifying incorrect calculation of Guidеlines as procedural error). These arguments misconstrue the sentencing record, which shows that the district court correctly identified the aрplicable Guidelines to provide for an offense level of 13 and a Criminal History Category of I, but ultimately decided to impose a non-Guidelines sentence.

While the district judge referenced “departing” from the Guidelines, in context, it is clear that what the district court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was referencing was а variance to achieve Folkes‘s “nonguidelines sentence of 36 months.” Sentencing Tr. at 9; see United States v. Keller, 539 F.3d 97, 99 n. 2 (2d Cir. 2008) (noting that, colloquially, “departure” and “variаnce” are often used interchangeably). It was procedurally appropriate for the district court to consider Folkes‘s extensivе history of criminal conduct as one factor supporting a non-Guidelines sentence. See 18 U.S.C. § 3553(a)(1). In applying a variance based, inter alia, on such considerations, the district court was nоt subject to the procedural limitations on departures specified in U.S.S.G. § 4A1.3. See United States v. Keller, 539 F.3d at 99 n. 2.

Folkes‘s contention that the district court failed adequately to сonsider the § 3553(a) factors, while cast here as a substantive reasonableness argument, might also be understood as a claim of procedural error. See United States v. Payne, 591 F.3d 46, 71 (2d Cir. 2010). So understood, the argument fails. We generally presume that a district court has satisfied its duty to consider the § 3553(a) factors in the absenсe of record evidence to the contrary. See United States v. Carr, 557 F.3d 93, 107 (2d Cir. 2009). In this case, the record amply demonstrates that the district ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court considered—and specifically referenced—the § 3553(a) factors in explaining its variance.

The fact that the court did not reference § 3553(a)(6), which specifies the need to avoid unwarranted sentencing disparities among similarly situated defendants, does not by itself signal procedural error. We do not require district courts robotically to reference each § 3553(a) factor. See United States v. Brown, 514 F.3d 256, 270 (2d Cir. 2008). Moreover, the distriсt court was hardly obliged to accord this factor the mitigating weight urged by Folkes in light of its stated reasons for according greater weight to other, аggravating § 3553(a) factors. See United States v. Fernandez, 443 F.3d 19, 31-32 (2d Cir. 2006). We will not second guess a district court‘s assignment of different weights to various § 3553(a) factors so long as its ultimate sentence is reasonable. See United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009); United States v. Cavera, 550 F.3d at 191.

2. Substantive Reasonableness

Having identified no procedural error, we consider Folkes‘s аrgument that his 36-month sentence for illegal reentry is substantively unreasonable because (1) variances are rarely employed in immigration cаses in the Eastern District of New York, (2) his sentence is twice the high end of his Guidelines range, and (3) it incarcerates him for longer than is necessary to accomplish the goals of sentencing. A general reference to other immigration sentences imposed in the Eastern District of New York is insufficiеnt to demonstrate an unwarranted disparity between Folkes‘s sentence for illegal reentry and those imposed on a range of other immigrаtion defendants who do not necessarily have similar records and who have not necessarily been found guilty of similar conduct. See 18 U.S.C. § 3553(a)(6); United States v. Fernandez, 443 F.3d at 31-32. As for Folkes‘s second argument, the percentage of a variance from the applicable Guidelines does not necessarily signal substantive unrеasonableness. See United States v. Cavera, 550 F.3d at 190 (citing Gall v. United States, 552 U.S. at 47, in explaining that while appellate court may consider extent of deviation from Guideline in reviewing sentencе, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it may not use percentage of departure as standard for determining strength of justification required).

In evaluating the totality of Folkes‘s substantive unreasonableness claim, our task is not to decide what sentence we think is appropriate. See Gall v. United States, 552 U.S. at 51. Rather, we consider only “whether the sentence imposed falls within the broad range that can be considered reasonable.” United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008). Having reviewed the district court‘s persuasive еxplanation for its variance, we conclude that this is not one of the “exceptional cases where the trial court‘s decision cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted).

3. Conclusion

Having identified no merit in Folkes‘s reasonableness challenge to his sentencе for illegal reentry, the judgment of conviction is AFFIRMED.

Notes

This wholly extratextual interpretation also forms the basis of NCB‘s third assignment of error, in which it alleges that the District Court interpreted the MFN Clause in a way that would never permit it to have any effect. NCB therefore argues that the District Court‘s interpretation violates basic principles of contract interpretation, which instruct courts to interpret a contract so as to give meaning to each clause. But ” ‘rules of interpretation ... must be taken as a guide, not a dictator. The text should always be read in its context.’ ” (quoting ). Read in cоntext, the contract is unambiguous on its face. We therefore decline to reinterpret the plain language of the contract. See (” ‘Language whose meaning is otherwise plain does not become ambiguous merely because ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the parties urge different interpretations in the litigation.’ ” (quoting )).

Read the detailed case summary