UNITED STATES of America, Appellee, v. Ramon MORALES, Defendant-Appellant, 501 F. App'x 42

SUMMARY ORDER Ramon Morales appeals from an amended judgment of conviction, entered April 28, 2011 in the United States District Court for the Southern District of New York (Koeltl, /.), sentencing him principally to concurrent terms of 144 months’ imprisonment on one count of conspiracy to distribute one kilogram and more of heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(

a) and 841(b)(1)(B), and 18 U.S.C. § 2. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. This appeal comes after Morales was resentenced in accordance with our remand in United States v. Morales, 560 F.3d 112 (2d Cir.2009). On resentencing, the government agreed to the use of the original felony information, thus removing the potential prejudice that arose from using an amended information.

The pre-sentence report calculated Morales’ offense level at 36 with a criminal history category III, yielding a Guidelines range of 235-293 months’ imprisonment. The defense requested a below-Guidelines sentence. It argued that Morales was 70 years old, suffering from neck and back injuries, and not receiving proper medical care in prison. The government sought a Guidelines sentence. The district court imposed a sentence of 144 months on Counts One and Two to run concurrently, to be followed by a five-year term of supervised release on both counts, also to run concurrently.

The district court considered the factors set forth in

Section 3553(a), noting, inter alia, that (1) the amounts of drugs and money involved in the offense were substantial; and

(2) Morales was previously convicted of a narcotics offense. The district court also took notice of Morales’ age, and stated that Morales “ha[d] received prescription pain medications,” although he “ha[d] not apparently received physical therapy that he regularly received before being in prison,” and stated these factors were the primary reasons for reducing Morales’ sentence from 240 months to 144 months. We “set aside a district court’s substantive determination only in exceptional cases where the trial court’s determination cannot be located within the range of permissible decisions.” United States v.

Cavern, 550 F.3d 180, 189 (2d Cir.2008). Specifically, Morales argues that the sentence imposed was unreasonable given his advanced age and ill health. However, the district court considered these age and health factors, along with the other

Section 3553(

a) factors, and they were the primary reasons the district court chose to sentence Morales to a below-Guidelines sentence 96 months lower than the original sentence. The district court was entitled to weigh the seriousness of Morales’ actions against his medical issues. We find no error. Accordingly, the judgment of the district court hereby is AFFIRMED.