17-762 United States v. Felder (Martin)

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, at 40 Foley Square, in the City of New York, on the 5th day of February, two thousand eighteen.

Present: ROBERT A. KATZMANN, Chief Judge, ROSEMARY S. POOLER, CHRISTOPHER F. DRONEY, Circuit Judges. ________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 17-762

TYRONE FELDER, AKA Meme, AKA ManMan, NICOMEDES FRASQUERI, AKA Nick, FREDRICK ALLEN, AKA Fox, ANGEL AMERZQUITO, KEVIN ANTHONY, AKA Kev-O, KELVIN DOUGLAS, AKA 40 Cal, DERRICK FELDER, AKA Unc, ANTHONY GIVENS, AKA Face, KERI GIVENS, BRIAN HALL, AKA Tats, ELIJAH HUBBARD, AKA Spazz, TERRELL JOHNSON, AKA Relin, TYRONE MARGWOOD, SHANEQUEA MASCALL, AKA Nene, LAMONT OBEY, AKA Gotti, TOMMY SMALLS, AKA Tommy Gunz, GEORGE STONE, AKA Jizz, JEROME THOMAS, AKA Rome, JOHNA THOMAS, AKA Tomboy,

Defendants, KAREEM MARTIN, AKA Heavy, AKA Reem, AKA Jamal Walker,

Defendant-Appellant.

____________________________________________

For Defendant-Appellant: Arza Feldman, Feldman & Feldman, Uniondale, NY.

For Appellee: Eli J. Mark, Gina Castellano and Michael Ferrara, Assistant United States Attorneys, Of Counsel, for Geoffrey Berman, Interim 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

(Caproni, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Kareem Martin appeals from a final judgment entered by the

district court (Caproni, J.) on March 6, 2017, following a jury trial, sentencing him principally to

22 years’ imprisonment for one count of narcotics conspiracy and one count of brandishing a

firearm during and in relation to a drug trafficking crime. Martin challenges his sentence as

substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

“We review a sentence for . . . substantive reasonableness under a ‘deferential abuse-of-

discretion standard.’” United States v. Thavaraja,

(2d Cir. 2014) (quoting Gall

v. United States,

(2007)). We “identif[y] as substantively unreasonable only

those sentences that are so ‘shockingly high, shockingly low, or otherwise unsupportable as a

matter of law’ that allowing them to stand would ‘damage the administration of justice.’” United

2 States v. Broxmeyer,

(2d Cir. 2012) (quoting United States v. Rigas,

(2d Cir. 2009)).

First, Martin argues that the district court failed to avoid unwarranted sentencing

disparities between himself and his co-defendants, in violation of

(a)(6). That is

simply not the pertinent comparison, however, as “we have repeatedly made clear that ‘section

3553(a)(6) requires a district court to consider nationwide sentence disparities, but does not

require a district court to consider disparities between co-defendants.’” United States v. Ghailani,

(2d Cir. 2013) (quoting United States v. Frias,

(2d Cir.

2008)). Moreover, “a disparity between non-similarly situated co-defendants is not a valid basis

for a claim of error under

(a)(6).” United States v. Fernandez,

(2d Cir. 2006), abrogated on other grounds by Rita v. United States,

(2007). Here,

Martin was not similarly situated to the co-defendants to whom he compares himself because

they pleaded guilty, unlike Martin, and they were subordinate to Martin in their gang’s hierarchy.

See e.g., United States v. Kasi,

(2d Cir. 2009) (summary order) (“Kasi

and his co-defendants were not similarly situated” where “Kasi was the only defendant to plead

not guilty and proceed to trial” and “was more culpable than his co-defendants because he was

the organizer and manager of the fraud scheme.”). Indeed, Tyrone Felder, Martin’s co-defendant

and the group’s leader, received an even lengthier sentence.

Second, Martin contends that the sentence imposed is “greater than necessary,” Def. Br.

23, attacking the district court’s “fail[ure] to impose the mandatory minimum sentence,” id. at

24. That argument is unavailing here, where the district court departed significantly downward

from the Guidelines’ sentencing range, which recommended a sentence at least 15 years longer

than that actually imposed by the district court. See United States v. Perez-Frias,

, 43

3 (2d Cir. 2011) (per curiam) (“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. It is therefore difficult to find that a below-Guidelines sentence is unreasonable.”

(internal quotation marks, alterations, and citations omitted)).

Third, Martin asserts that the district court failed to adequately account for aspects of his

personal history. “The particular weight to be afforded to aggravating and mitigating factors is a

matter firmly committed to the discretion of the sentencing judge,” however, and “we are

mindful that facts may frequently point in different directions so that even experienced district

judges may reasonably differ, not only in their findings of fact, but in the relative weight they

accord competing circumstances.” Broxmeyer,

(internal citation and quotation

marks omitted). Having reviewed the record, we find that the district court properly considered

Martin’s “unfortunate” and “tragic” background, discussing how Martin “grew up in an

impoverished environment with no positive male role models,” was “failed by the New York

City Public Schools,” and was raised, in part, by “a crack-driven father” and “crack-driven aunt.”

App. 145-46. That the district court did not find those factors to outweigh the “terrible” nature of

Martin’s crimes and his “incredibly violent” history is not a proper basis for vacating his

sentence. Id. at 146-47.

Lastly, Martin claims that he was improperly punished for exercising his right to a jury

trial. As a preliminary matter, we note that this argument is premised on Martin’s belief that he

would have received a sentence of approximately five years’ imprisonment if he had pleaded

guilty, but he fails to point to anything in the record supporting that contested proposition. See

Fed. R. App. P. 28(a)(8)(A) (requiring brief to contain “appellant’s contentions and the reasons

for them, with citations to the authorities and parts of the record on which the appellant relies”).

4 Even assuming arguendo that Martin is correct that he could have received a significantly shorter

sentence if he had pled guilty, however, he has also failed to demonstrate that the actual sentence

imposed was impermissible retaliation for his determination to go to trial, as opposed to a

legitimate consequence of his own decision not to accept any plea agreement that may have been

offered to him. See, e.g., Wasman v. United States,

(1984) (“[D]ue process is

not implicated when a prosecutor threatens to seek conviction on a greater offense if the

defendant does not plead guilty and in fact does so when the defendant proceeds to trial,” which

is “a mere by-product of the give-and-take negotiation common in plea bargaining.” (internal

citation and quotation marks omitted)); United States v. Tracy,

(2d Cir.

1993) (rejecting similar argument when there was “nothing to indicate that the court sought to

penalize [a defendant] for exercising his right to put the government to its proof” and “the court

stated several other weighty reasons for the sentence it selected”).

We have considered all of the defendant’s arguments on this appeal and find in them no

basis for vacatur. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK

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