UNITED STATES of America, Appellee, v. Todd CATANZANO, Defendant-Appellant, 364 F. App'x 663

SUMMARY ORDER Defendant appeals from a judgment of conviction arising out of his guilty plea to one count of unlawfully conspiring to distribute and possess with intent to distribute more than fifty grams of methamphetamine, in violation of 21 U.S.C. § 846. Following his plea, defendant was sentenced to five months’ imprisonment and five years’ supervised release, with five months of his term of supervised release to be served in a community confinement center.

Defendant’s sole argument in this appeal is that the district court “f[a]iled to exercise the discretion required of it” by “refusing to consider a sentence that does not include imprisonment.” In essence, defendant urges us to attribute procedural error to the sentence imposed by the district court. See United States v. Johnson, 567 F.3d 40, 51-52 (2d Cir.2009). We decline the invitation. The district court’s Guidelines calculation is undisputed, and there is no question that the court considered the Guidelines on an advisory basis only.

We must also “presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors” set forth in 18 U.S.C. § 3553(a). United States v. Fernandez, 443 F.3d 19, 30 (2d Cir.2006). Finally, defendant’s argument proceeds on the basis of a factual premise — ie., that the district court “refus[ed] to consider” a non-incarceratory sentence — that is expressly belied by the record. The sentencing judge stated that he arrived at the sentence based on consideration of “the combination of 18 U.S.C.

Section 3553(

a) factors ... including the nature and circumstances of the offense,” and that “the reason ... that there should not be a non-incarcerative sentence has to do with the objectives of the statute.” In light of the Fernandez presumption, and based on the transcript of the sentencing, we are satisfied that the district court was sufficiently aware of the parameters of its sentencing authority.

Put differently, there is a difference between a district court’s failure to acknowledge the scope of its sentencing discretion, and a decision to exercise that discretion in manner that is at odds with the arguments presented by a criminal defendant. Our review of the record indicates that this case falls squarely into the latter category. Accordingly, the April 2, 2009 judgment of the district court is AFFIRMED.