UNITED STATES of America, Appellee, v. Manuel CARRASCO, Defendant-Appellant, 515 F. App'x 5

SUMMARY ORDER Defendant-Appellant Manuel Carrasco-Mateo (“Carrasco”) appeals from a judgment by the United States District Court for the Northern District of New York (Suddaby, /.), sentencing him to 56 months’ imprisonment for illegal re-entry. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. We apply a “ ‘deferential abuse-of-discretion standard’ ” in reviewing sentences for procedural and substantive unreasonableness. See United States v. Pope, 554 F.3d 240, 244 (2d Cir.2009) (quoting Gall v.

United States, 552 U.S. 38, 52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We will find procedural error when, inter alia, a district court “rests its sentence on a clearly erroneous finding of fact” or “fails adequately to explain its chosen sentence”— particularly if the court departs from the Guidelines range. United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc). We will set aside a district court’s sentence for substantive unreasonableness “only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’ ” Id. at 189 (quoting United States v.

Rigas, 490 F.3d 208, 238 (2d Cir.2007)). Here, we find that the district court did not abuse its discretion in imposing a sentence toward the top end of the Guidelines range of 46-57 months. Car-rasco argues that the district court committed procedural error by relying on unproven elements of a pending state charge. “A sentencing court is not limited to considering only evidence of the convicted offense [and] may take into account other relevant conduct.” United States v. Juwa, 508 F.3d 694, 700 (2d Cir.2007).

We recognize, however, that “facts relevant to sentencing must be found by a preponderance of the evidence,” and that “an indictment or a charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed.” Id. at 701.

In imposing its sentence, the court supported its reasoning that Carras-co “ha[dn’t] gotten the message” by referencing the pending action, specifically, “the fact that there’s a conflict where the police have to be called,” and the “severity” of an “altercation ... with a weapon.” Certain aspects of the conduct leading to the state arrest were undisputed. To the extent that the district court may have considered aspects of the pending charges that were not proven by a preponderance of the evidence, the court committed procedural error; however, any error was harmless. See Fed.R.Crim.P. 52(a); United States v.

Mason, 692 F.3d 178, 184 (2d Cir.2012). Carrasco’s sentence fell within the expected range. The court could have considered Carrasco’s evasion of police to be sufficiently serious, or even found the case completely typical, and still sentenced Carrasco to 56 months. See Rita v. United States, 551 U.S. 338, 356-57, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Carrasco also challenges his sentence on the grounds of substantive unreasonableness.

Our review merely “provided a backstop for those few cases [in which] ... the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.2009). While this Court has declined to adopt the doctrine that a within-Guidelines sentence is presumptively reasonable, “[w]e recognize that 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.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006).

In imposing Carrasco’s within-Guidelines sentence, the district court cited its belief that Carras-co’s conduct “showfed] a complete disregard or lack of respect for the laws of this country.” Taking the relevant history as a whole, it cannot be said that the district court abused its discretion because Carras-co repeatedly entered the country illegally, was previously convicted of drug-trafficking, and dangerously attempted to evade the police. We find that the district court’s sentence was “located within the range of permissible decisions” and is thus substantively reasonable.

See Cavera, 550 F.3d at 189 (internal quotation marks omitted). Lastly, the potential applicability of the “Fast-Track” downward departure program was not raised at the district court by either the Government, defense counsel, or the court and is therefore waived. To the extent that Carrasco raises an ineffective assistance of counsel claim, the record before us is insufficient to make a determination. We therefore decline to decide it on appeal. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.