UNITED STATES of America, Plaintiff-Appellee, v. Jose Danilo Duque GONZALEZ, aka MONO, Defendant, Alba Lillian Duque-Yepes, aka La Negra, Defendant-Appellant, 516 F. App'x 54

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. Defendant-Appellant Alba Lillian Du-que-Yepes (“Duque”) appeals from the district court’s January 18, 2012 judgment of conviction and sentence. Duque pled guilty to one count of conspiracy to distribute and possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

On appeal, Duque argues that her Guidelines sentence of 108 months’ imprisonment was procedurally unreasonable. “The district courts have discretion to select an appropriate sentence, and in doing so are statutorily bound to consider the factors listed in [18 U.S.C.] § 3558(a), including the advisory Guidelines range.” United States v. Cavera, 550 F.3d 180, 188 (2d Cir.2008) (en banc).

On appeal, our review “encompasses two components: procedural review and substantive review.” Id. “A district court commits procedural error where it fails to calculate the Guidelines range, makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.” Id. at 190 (internal citation omitted). “It also errs procedurally if it does not consider the § 3553(

a) factors, or rests its sentence on a clearly erroneous finding of fact.” Id. “Moreover, a district court errs if it fails adequately to explain its chosen sentence, and must include an explanation for any deviation from the Guidelines range.” Id. (internal quotation marks omitted). We review the district court under a “deferential abuse-of-discretion standard.” Id. at 189 (internal quotation marks omitted). However, when a defendant fails to object to procedural error before the district court, “rigorous plain error analysis is appropriate.” United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.2007).

Here, because Duque failed to argue before the district court that her sentence was procedurally unreasonable, we review for plain error. Duque argues that the district court erred by refusing to sentence her below the Guidelines range. However, we have held that the review of such a refusal “will be available only when a sentencing court misapprehended the scope of its authority to depart or the sentence was otherwise illegal.” United States v. Stinson, 465 F.3d 113, 114 (2d Cir.2006) (internal quotation marks omitted).

Here, nothing in the record suggests that the district court failed to understand its authority to depart from the Guidelines range. Insofar as the district court referred to the amount of drugs involved as a reason for imposing a within-Guidelines sentence, that comment, in conjunction with the court’s earlier statements at the sentencing hearing, are fairly read to express the view that the frequency and magnitude of Duque’s courier transactions offset any argument in favor of a downward departure.

The fact that the drug quantity also factored into the calculation of Duque’s Guidelines range does not support her claim that the noted reference indicated double counting. To the contrary, the district court was properly explaining why the severity of the crime of conviction, see 18 U.S.C. § 3553(a)(2)(A), outweighed any mitigating personal circumstances, see id. § 3553(a)(1), so as to support its independent decision to impose a sentence consistent with the Guidelines, see Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Duque also argues that the district court erred in failing to discuss mitigating arguments that she made in connection with sentencing. “However, there is no requirement that the court mention the required factors, much less explain how each factor affected the court’s decision.” United States v. Banks, 464 F.3d 184, 190 (2d Cir.2006). Accordingly, the district court did not err in its sentence. We have considered all of Duque’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.