12‐4181‐cr United States v. Melendez

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 TO 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 24th day of January, two thousand fourteen.

PRESENT: RICHARD C. WESLEY, PETER W. HALL, DENNY CHIN Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 12‐4181‐cr

JUAN CARLOS MELENDEZ,

Defendant‐Appellant. _____________________________________ FOR DEFENDANT‐APPELLANT: RANDOLPH Z. VOLKELL, Merrick, NY.

FOR THE UNITED STATES: DEBORAH R. SLATER (Robert M. Spector, on the brief), Assistant United States Attorneys, for Dierdre M. Daly, Acting United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from a judgement of the United States District Court for the District

of Connecticut (Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgement of the district court is

AFFIRMED.

Defendant‐Appellant Juan Carlos Melendez appeals his sentence following

his plea of guilty to a single count of receipt of child pornography in violation of

(a)(2). He and the government agreed that the sentencing

guidelines recommended a 210‐262 month sentence, but that the statutory

maximum was 240 months. The district court rejected the applicability of one

sentencing enhancement agreed to by the parties, and recalculated the guidelines

at 168‐210 months. The court then sentenced Melendez to 168 monthsʹ

imprisonment. Melendez now appeals his sentence and we affirm. In explaining

our decision, we assume the parties’ familiarity with the case.

2 Melendezʹs sole argument is that his sentence is substantively

unreasonable. Our substantive review of district court sentencing is deferential.

We reverse “only those sentences that are . . . shockingly high, [or] shockingly

low.” United States v. Broxmeyer,

(2d Cir. 2012). We have

recognized that “in the overwhelming majority of cases, a Guidelines sentence

will fall comfortably within the broad range of sentences that would be

reasonable in the particular circumstances.” United States v. Fernandez,

(2d Cir. 2006). Nonetheless, we have declined to establish a presumption of

reasonableness for guidelines sentences. United States v. Dorvee,

(2d Cir. 2010).

In this case, the district court carefully considered the guidelines, weighed

the facts, and imposed a sentence that was below what the guidelines would

have called for in the absence of a statutory maximum. The district court found

that Melendez showed little remorse for his actions and that he was likely to re‐

offend if he were released. The court also found that Melendez was more than a

mere passive recipient of his contraband, unlike other child pornography

defendants who had received more lenient sentences. As Melendez points out,

there are a number of factors in his case that favored a lenient sentence. However,

3 it is undisputed that the court considered these. In light of all of the district

court’s factual findings, we have no trouble concluding that Melendez’s sentence

was reasonable.

For the foregoing reasons, we AFFIRM the district court’s judgement.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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