UNITED STATES of America, Appellee, v. Samuel COLON, Defendant-Appellant, 254 F. App'x 21

SUMMARY ORDER Defendant Samuel Colon appeals the district court’s decision, on remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005), to adhere to the concurrent sentences of 121 and 120 months’ incarceration imposed as a result of Colon’s guilty plea to (1) conspiracy to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846, and (2) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision. 1. Failure to Demonstrate Plain Sixth Amendment Error The purpose of a Crosby remand is to ascertain whether non-final sentences imposed before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), manifest plain error under the Sixth Amendment. See United States v. Crosby, 397 F.3d at 118.

To the extent Colon asserts that prior convictions used to calculate his Criminal History Category under the Sentencing Guidelines needed to be found by a jury beyond a reasonable doubt or admitted by the defendant, he appears to assert a Sixth Amendment violation. Such an argument is meritless. First, it appears that Colon did, in effect, admit the fact of his prior convictions by failing to dispute their inclusion in his presentence report (“PSR”), a fact duly noted by the district court in its April 25, 2006 order denying resentencing, 429 F.Supp.2d 473. See United States v.

Fagans, 406 F.3d 138, 142 (2d Cir.2005) (noting that where defendant with prior conviction “made no objection to the facts contained in the PSR, the fact of [the] prior conviction may be taken as admitted”). Second, even absent such admission, Colon could not establish a Sixth Amendment violation because the Supreme Court has expressly ruled that prior convictions are not facts that have to be proved to a jury, even when they trigger enhanced sentences. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also. United States v.

Booker, 543 U.S. at 231, 125 S.Ct. 738 (recognizing Apprendi’s recidivism exception); United States v. Snype, 441 F.3d 119, 147-49 (2d Cir.2006). In this case, Colon’s prior convictions triggered no mandatory sentence enhancement; they were relevant only to the calculation of his Sentencing Guidelines. The district court having acknowledged the advisory nature of the Guidelines, the Sixth Amendment did not require jury findings of fact to support their calculation. See United States v.

Gonzalez, 407 F.3d 118, 125 (2d Cir.2005) (holding that, after Booker and Crosby, preponderance standard supported judicial determination of Guidelines). 2. Failure to Demonstrate Unreasonableness of Sentence To the extent Colon persists in challenging his sentence, notwithstanding the absence of Sixth Amendment error, our review is limited to an assessment of reasonableness. See United States v. Booker, 543 U.S. at 262, 125 S.Ct. 738; United States v. Sindima, 488 F.3d 81, 84 (2d Cir.2007); United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.2006); see also United States v.

Williams, 475 F.3d 468, 474 (2d Cir.2007) (holding “that we review a sentence for reasonableness even after a District Court declines to resentence pursuant to Crosby”). While this standard has both procedural and substantive components, it is best analogized to review for abuse of discretion in that an appellate panel does not substitute its judgment for that of the sentencing judge. See United States v. Fernandez, 443 F.3d at 27; United States v. Crosby, 397 F.3d at 114-15.

Colon’s contention that his sentence is procedurally unreasonable because his Criminal History Category was calculated based on prior convictions not proved to a jury is foreclosed by our holding that the Sixth Amendment requires no such proof. Colon’s claim that his 121-month sentence—at the low end of his 121-151 month Guidelines range—is substantively unreasonable in light of his “history and characteristics,” 18 U.S.C. § 3553(a)(1), is equally meritless.

On Crosby remand, the district judge expressly recognized her authority to impose a non-Guidelines sentence based on Colon’s medical problems, see 18 U.S.C. § 3553(a)(1), (a)(2)(D) (requiring consideration of defendant’s “history and characteristics” and need for “medical care”). She declined to exercise that authority in light of Colon’s extensive criminal history, the “extremely serious” nature of his offense, and the need to protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(C).

The court’s conclusion that no lesser sentence was warranted even under an advisory Guidelines system cannot be deemed unreasonable given its recognition of these “counterbalancing” factors. As we have repeatedly observed, we will not second-guess the weight a district court accords a mitigating sentencing factor in imposing an otherwise reasonable sentence. See United States v. Florez, 447 F.3d 145, 157-58 (2d Cir.2006); United States v. Fernandez, 443 F.3d at 34.

Moreover, as the Supreme Court recently stated: “[Wjhere [the sentencing] judge and [the Sentencing] Commission both determine” that a sentence within the Guidelines range is appropriate for the case at hand, “that sentence likely reflects the § 3553(

a) factors.” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2467, 168 L.Ed.2d 203 (2007); see also United States v. Ministro-Tapia, 470 F.3d 137, 142 (2d Cir.2006). In sum, this is not one of those rare cases in which we encounter a Guidelines sentence that is unreasonable. See United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005). The July 15, 2003 judgment of conviction is AFFIRMED.