14‐301 United States v. Allen

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 10th day of June, two thousand fifteen.

PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, PETER W. HALL, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA,

Appellee,

‐v.‐ No. 14‐301

LEWIS ALLEN, AKA CHOC,

Defendant‐Appellant. ____________________________________________

 The Clerk of Court is respectfully requested to amend the caption as set forth above. FOR APPELLANT: Charles S. Hochbaum, Charles S. Hochbaum, P.C., Brooklyn, NY, for Defendant‐Appellant Lewis Allen AKA Choc.

FOR APPELLEE: Jessica A. Masella, Brian A. Jacobs, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. ____________________________________________

Appeal from the United States District Court for the Southern District of

New York (Crotty, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court be and

hereby is AFFIRMED.

Defendant‐Appellant Lewis Allen (“Allen”) appeals from a judgment of

conviction entered in the United States District Court for the Southern District of

New York following his guilty plea to one count of using a firearm to commit

murder during and in relation to a drug trafficking conspiracy. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

The District Court sentenced Allen to 360 months’ imprisonment. He

argues that the sentence is substantively unreasonable because the District Court

2 failed to reduce it by time Allen had already served in connection with a prior

federal conviction for participating in a drug trafficking conspiracy.

In reviewing the substantive reasonableness of a sentence, we do not

“substitute our own judgment for the district court’s on the question of what is

sufficient to meet the [18 U.S.C.] § 3553(a) considerations in any particular case.”

United States v. Cavera,

(2d Cir. 2008) (citing United States v.

Fernandez,

(2d Cir. 2006)). Rather, this Court “set[s] 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,

(2d Cir. 2007)). Here, the

District Court found Allen’s prior conviction to be for a separate crime and

arrived at his sentence pursuant to the Sentencing Guidelines and the factors set

forth under Section 3553(a); we do not find Allen’s sentence to be substantively

unreasonable.

3 We have considered all of Allen’s remaining arguments and find them to

be without merit. Accordingly, for the reasons set forth above, the judgment of

the District Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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