The Honorable Richard W. Goldberg, United States Court of International Trade,… v. Villafuerte UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term…

* The Honorable Richard W. Goldberg, United States Court of
International Trade, sitting by designation.
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06-1292-cr
United States v. Villafuerte
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: May 23, 2007 Decided: September 21, 2007) 5
Docket No. 06-1292-cr 6
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UNITED STATES OF AMERICA, 8
Appellee, 9
-- v. -- 10
JORGE VILLAFUERTE, also known as George, 11
Defendant-Appellant. 12
-------------------------------------------------------x 13
B e f o r e : WALKER and CABRANES, Circuit Judges, and GOLDBERG, 14
Judge.*
15
16
Appeal from a judgment of the United States District Court 17
for the Northern District of New York (Gary L. Sharpe, Judge), 18
sentencing the defendant-appellant to a 70-month term of 19
imprisonment. 20
AFFIRMED. 21
MOLLY CORBETT, Assistant Federal 22
Public Defender (Alexander Bunin, 23

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Federal Public Defender for the 1
Northern District of New York, 2
George E. Baird, Assistant Federal 3
Public Defender, on the brief), 4
Albany, New York, for Defendant- 5
Appellant. 6
BRENDA K. SANNES, Assistant United 7
States Attorney (Glenn T. Suddaby, 8
United States Attorney for the 9
Northern District of New York, 10
Richard S. Hartunian, Assistant 11
United States Attorney, on the 12
brief), Syracuse, New York, for 13
Appellee. 14
JOHN M. WALKER, JR., Circuit Judge: 15
This case requires us to determine the consequences of a 16
criminal defendant’s failure to object to a district court’s 17
method of discharging some of its duties under 18 U.S.C. § 3553. 18
Defendant-appellant Jorge Villafuerte appeals from a March 8, 19
2006 judgment of the district court for the Northern District of 20
New York (Gary L. Sharpe, Judge), arguing that the district court 21
erred by (1) concluding that the sentence recommended by the 22
United States Sentencing Guidelines (“Guidelines”) accounted for 23
the factors under § 3553(a) and (2) failing to state adequately 24
its reasons for imposing the chosen sentence, as required by § 25
3553(c). We need not decide whether there was any error; because 26
Villafuerte failed to object below, both challenges are subject 27
to plain error analysis, and neither alleged error is plain. 28
BACKGROUND 29
Villafuerte was indicted with five co-defendants for 30
conspiring to possess with intent to distribute and conspiring to 31

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distribute over five hundred grams of cocaine in violation of 21 1
U.S.C. §§ 841(a)(1) and 846. Villafuerte pled guilty without a 2
plea agreement and, five months later, was sentenced. 3
The revised Presentence Report (“PSR”) calculated a 4
sentencing range under the Guidelines of 70 to 87 months, which 5
the parties did not contest. Villafuerte argued for a below- 6
Guidelines sentence based upon several circumstances: His strong 7
family ties, his drug usage since an early age, his remorse for 8
his crime and its effect on his family, the fact that he had been 9
gainfully employed for most of his adult life, and his lack of 10
prior convictions. Villafuerte also contended that the PSR’s 11
recommended sentence was greater than necessary and did not 12
further the purposes of sentencing. 13
Unpersuaded, the district court adopted the PSR’s 14
calculations and proposed sentence range and sentenced 15
Villafuerte to a 70-month term of imprisonment, the bottom of the 16
Guidelines range. It rejected his argument with respect to drug 17
usage, finding that although Villafuerte was a drug abuser, his 18
crime was not “drug-use induced” but rather “money-induced,” as 19
shown by his purchase of a house in Texas with some of the 20
profits. The district court sympathized with Villafuerte’s 21
family situation but found that the effect of conviction on them 22
was “irrelevant” because it was the natural consequence of 23
Villafuerte’s decision to commit the crime. Finally, the court 24
said: 25

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In this case, I find that the advisory guidelines take 1
into account all of the 3553(a) factors and the other 2
factors, in terms of determining what’s an appropriate 3
sentence, and I believe that the bottom of the advisory 4
guideline range is the minimum, that is a fair 5
sentence, in terms of the conduct that’s involved here. 6
7
Villafuerte did not object to this statement or his sentence 8
during the hearing. He now appeals his sentence. 9
DISCUSSION 10
We review a district court’s sentencing decisions for both 11
substantive and procedural reasonableness. United States v. 12
Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006). Reasonableness 13
review is similar to review for abuse of discretion and may 14
require reversal when the district court’s decision “cannot be 15
located within the range of permissible decisions” or is based on 16
a legal error or clearly erroneous factual finding. United 17
States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007) (internal 18
quotation marks omitted). Substantive reasonableness involves 19
the length of the sentence imposed in light of the factors 20
enumerated under 18 U.S.C. § 3553(a). Rattoballi, 452 F.3d at 21
132. Procedural reasonableness concerns the procedures a 22
district court employs in arriving at a sentence. United States 23
v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). To impose a 24
procedurally reasonable sentence, see United States v. 25
Giovanelli, 464 F.3d 346, 355 (2d Cir. 2006) (per curiam); 26
Rattoballi, 452 F.3d at 131, a district court must (1) normally 27
determine the applicable Guidelines range, (2) consider the 28

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Guidelines along with the other factors under § 3553(a), and (3) 1
determine whether to impose a Guidelines sentence or a non- 2
Guidelines sentence, see United States v. Crosby, 397 F.3d 103, 3
111-13 (2d Cir. 2005); see also United States v. Fernandez, 443 4
F.3d 19, 26 (2d Cir. 2006). 5
We review the district court’s interpretation of the 6
Guidelines de novo and its findings of fact for clear error. 7
Rattoballi, 452 F.3d at 131. 8
I. Consideration of the 18 U.S.C. § 3553(a) Factors 9
Villafuerte argues, for the first time on appeal, that his 10
sentence is unreasonable because the district court, in 11
concluding that a sentence under the Guidelines accounted for all 12
the § 3553(a) factors in his case, failed to consider the § 13
3553(a) factors. 18 U.S.C. § 3553(a) requires the district court 14
to consider: 15
(1) the nature and circumstances of the offense and the 16
history and characteristics of the defendant; 17
(2) the need for the sentence imposed-- 18
(A) to reflect the seriousness of the offense, to 19
promote respect for the law, and to provide just 20
punishment for the offense; 21
(B) to afford adequate deterrence to criminal conduct; 22
(C) to protect the public from further crimes of the 23
defendant; and 24
(D) to provide the defendant with needed educational or 25
vocational training, medical care, or other 26
correctional treatment in the most effective manner; 27
(3) the kinds of sentences available; 28
(4) the kinds of sentence and the sentencing range 29
established [and recommended by the Guidelines] . . . ; 30
(5) any pertinent policy statement . . . issued by the 31
Sentencing Commission . . . ; 32

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(6) the need to avoid unwarranted sentence disparities 1
among defendants with similar records who have been 2
found guilty of similar conduct; and 3
(7) the need to provide restitution to any victims of 4
the offense. 5
We conclude that Villafuerte’s failure to object below is fatal 6
to this claim of error. 7
When a party properly objects to a sentencing error in the 8
district court, we review for harmless error. See United States 9
v. Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam); see also 10
Fed. R. Crim. P. 52(a). By contrast, issues not raised in the 11
trial court because of oversight, including sentencing issues, 12
are normally deemed forfeited on appeal unless they meet our 13
standard for plain error. United States v. Keppler, 2 F.3d 21, 14
23 (2d Cir. 1993); see also Fed. R. Crim. P. 52(b); United States 15
v. Yu-Leung, 51 F.3d 1116, 1121-22 (2d Cir. 1995) (distinguishing 16
forfeiture from waiver). We have long stated, however, that we 17
may sometimes review sentencing issues without full plain error 18
analysis “despite lack of objection at trial . . . [although] 19
such consideration is not assured.” United States v. Baez, 944 20
F.2d 88, 90 (2d Cir. 1991); see also United States v. Keigue, 318 21
F.3d 437, 441 (2d Cir. 2003) (noting the two types of review for 22
unraised sentencing errors); United States v. Sofsky, 287 F.3d 23
122, 125 (2d Cir. 2002). 24
When a defendant does not object to a district court’s 25
alleged failure to properly consider all of the § 3553(a) 26
factors, it is unclear under our prior case law whether we review 27

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1 Our case law indicates that a less rigorous standard may not
require strict compliance with all the requirements of plain
error, see, e.g., United States v. Simmons, 343 F.3d 72, 80 (2d
Cir. 2003), or may even allow relief due solely to prejudicial
error, see, e.g., United States v. Goffi 446 F.3d 319, 321 (2d
Cir. 2006) (dictum). Because we hold that full plain error
analysis applies to the types of claims at issue, we need not
define the precise content of a less rigorous standard.
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for plain error or under a less rigorous standard.1 See United 1
States v. Pereira, 465 F.3d 515, 520 (2d Cir. 2006). Recently, 2
we applied plain error analysis to this sort of error without 3
providing any rationale for the choice. See United States v. 4
Carter, 489 F.3d 528, 537 (2d Cir. 2007). In that case, however, 5
we ultimately held that there was no error at all and applied 6
none of the other requirements of plain error, see id. at 540-41, 7
arguably rendering its decision to review for plain error obiter 8
dictum. Regardless of whether Carter prevents us from applying a 9
less rigorous standard, we now expressly hold that rigorous plain 10
error analysis is appropriate for such unpreserved errors. 11
Vacatur for sentencing error does not always come at the 12
same cost as vacatur for trial error, in part because “noticing 13
unobjected to errors that occur at trial precipitates an entire 14
new trial that could have been avoided by a timely objection, 15
whereas correcting a sentencing error results in, at most, only a 16
remand for resentencing.” Sofsky, 287 F.3d at 125; see also 17
United States v. Williams, 399 F.3d 450, 455-57 (2d Cir. 2005) 18
(comparing the costs and effects of correcting unpreserved trial 19
errors with correcting unpreserved sentencing errors). This cost 20

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differential motivated us in Crosby to mandate limited remands to 1
dispose of unpreserved Booker procedural errors in direct appeals 2
of pre-Booker sentences. See 397 F.3d at 116-17. For similar 3
reasons with respect to sentencing issues in general, we have 4
been more likely to avoid the full rigors of plain error analysis 5
when the sentence was imposed without giving the appellant - 6
whether the government or the defendant - prior notice of the 7
aspect of the sentence challenged on appeal. See Sofsky, 287 8
F.3d at 125-26; see also United States v. Gilmore, 471 F.3d 64, 9
66 (2d Cir. 2006) (stating, without deciding, that these 10
circumstances might be met for the error at issue); Simmons, 343 11
F.3d at 80. On the other hand, we have declined to overlook a 12
lack of objection where the sentencing issue was “not 13
particularly novel or complex,” see Keppler, 2 F.3d at 24, or 14
where the case had already been remanded for careful 15
reconsideration of the sentence, see Baez, 944 F.2d at 90. 16
With this in mind, we hold that plain error analysis should 17
apply to the sort of error at issue here. Because we have 18
unambiguously required consideration of the § 3553(a) factors, in 19
addition to the now-advisory Guidelines, in every criminal 20
sentencing proceeding since we issued Crosby shortly after the 21
Supreme Court decided Booker, see Crosby, 397 F.3d at 115, we 22
cannot view this class of issues as novel. Because Villafuerte 23
was sentenced more than a year after our landmark decision in 24
Crosby, his counsel was plainly aware of the district court’s 25

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obligation to consider the § 3553(a) factors. Although we have 1
noted that proper consideration of those factors “is not a 2
cut-and-dried process of factfinding and calculation,” Fernandez, 3
443 F.3d at 29, raising an objection to the failure to do so in 4
order to alert the district court to the problem is neither 5
difficult nor onerous. This requirement alerts the district 6
court to a potential problem at the trial level and facilitates 7
its remediation at little cost to the parties, avoiding the 8
unnecessary expenditure of judicial time and energy in appeal and 9
remand. This conclusion, moreover, is consistent with several of 10
our sister circuits. See, e.g., United States v. Eversole, 487 11
F.3d 1024, 1029, 1034-35 (6th Cir. 2007); United States v. 12
Traxler, 477 F.3d 1243, 1250 (10th Cir. 2007); United States v. 13
Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (dealing specifically 14
with the parsimony clause of § 3553(a)); United States v. Knows 15
His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006). 16
To establish plain error, the defendant must establish (1) 17
error (2) that is plain and (3) affects substantial rights. 18
United States v. Banks, 464 F.3d 184, 189 (2d Cir. 2006); United 19
States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002); see also United 20
States v. Olano, 507 U.S. 725, 732 (1993). If the error meets 21
these initial requirements, we then must consider whether to 22
exercise our discretion to correct it, which is appropriate only 23
if the error seriously affected the “fairness, integrity, or 24
public reputation of the judicial proceedings.” Doe, 297 F.3d at 25

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82. We must also keep in mind the Supreme Court’s guidance that 1
reversal for plain error should “be used sparingly, solely in 2
those circumstances in which a miscarriage of justice would 3
otherwise result.” United States v. Frady, 456 U.S. 152, 163 4
n.14 (1982). 5
To begin with, there is a question here of whether the 6
district court committed any error at all. In recently holding 7
that courts of appeals may presume that a properly calculated, 8
within-Guidelines sentence is reasonable, the Supreme Court 9
stated that the Guidelines “seek to embody the § 3553(a) 10
considerations, both in principle and in practice . . . [and] it 11
is fair to assume that the Guidelines, insofar as practicable, 12
reflect a rough approximation of sentences that might achieve § 13
3553(a)’s objectives.” Rita v. United States, 127 S. Ct. 2456, 14
2464-65 (2007); see also Rattoballi, 452 F.3d at 133 (“[T]he 15
Sentencing Commission is an expert agency whose statutory charge 16
mirrors the § 3553(a) factors that the district courts are 17
required to consider.”). Similarly, we have held that a 18
“sentencing judge’s decision to place special weight on the 19
recommended guideline[s] range will often be appropriate, because 20
the Sentencing Guidelines reflect the considered judgment of the 21
Sentencing Commission, are the only integration of the multiple 22
[§ 3553(a)] factors and, with important exceptions, . . . were 23
based upon the actual sentences of many judges.” United States 24
v. Capanelli, 479 F.3d 163, 165 (2d Cir. 2007) (per curiam) 25

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(citations and internal quotation marks omitted) (alteration in 1
original). Consequently, a district court’s imposition of a 2
within-Guidelines sentence based upon its conclusion that the 3
Guidelines account for the § 3553(a) factors in that particular 4
case does not necessarily constitute error. In any event, we 5
need not decide whether the district court erred here because any 6
possible error is not plain. 7
To be plain, the error must be clear or obvious, Olano, 507 8
U.S. at 734, at the time of appellate review, United States v. 9
Stewart, 433 F.3d 273, 290 (2d Cir. 2006). In fact, the 10
threshold is high enough that the Supreme Court has stated that 11
the error must be so plain that “the trial judge and prosecutor 12
were derelict in countenancing it, even absent the defendant’s 13
timely assistance in detecting it.” Frady, 456 U.S. at 163; see 14
also United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) 15
(en banc). 16
Even if the district court erred in concluding that the 17
Guidelines accounted for the § 3553(a) factors in this case, we 18
cannot say that the error is plain. Before Villafuerte’s 19
sentencing, we said that the Guidelines may serve as a sentencing 20
court’s “benchmark or a point of reference or departure.” United 21
States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005). And it 22
is not obvious that the district court used the Guidelines range 23
as anything other than a benchmark here. Its statements at the 24
sentencing hearing clearly show that it knew that the Guidelines 25

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2 The record further shows that the district court considered the
gravity of Villafuerte’s § 3553(a) arguments: It recommended that
he participate in a drug treatment program in prison and that he
be placed in a facility as close to his family as possible, both
of which Villafuerte requested.
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were only advisory and that it had to consider, among other 1
things, the § 3553(a) factors. It also made clear the advisory 2
Guidelines “[i]n this case . . . take into account all of the 3
3553(a) factors and other factors” and that “the advisory 4
guideline range is the minimum, that is a fair sentence, in terms 5
of the conduct that’s involved here.” In considering the 6
Guidelines as a starting point and finding that Villafuerte’s 7
several § 3553(a) arguments did not merit deviation,2 any error, 8
assuming there was one, was not obvious. 9
II. Statement of Reasons Under 18 U.S.C. § 3553(c) 10
Villafuerte next argues that the district court failed to 11
satisfy its obligation under 18 U.S.C. § 3553(c) to give the 12
reasons for imposing its chosen sentence. Section 3553(c) 13
provides in relevant part: 14
The court, at the time of sentencing, shall state in 15
open court the reasons for its imposition of the 16
particular sentence, and, if the sentence-- 17
(1) is of the kind, and within the range, described in 18
subsection (a)(4) and that range exceeds 24 months, the 19
reason for imposing a sentence at a particular point 20
within the range; or 21
(2) is not of the kind, or is outside the range, 22
described in subsection (a)(4), the specific reason for 23
the imposition of a sentence different from that 24
described, which reasons must also be stated with 25
specificity in the written order of judgment and 26
commitment . . . . 27
28

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18 U.S.C. § 3553(c). This requirement serves the important goals 1
of (1) informing the defendant of the reasons for his sentence, 2
(2) permitting meaningful appellate review, (3) enabling the 3
public to learn why the defendant received a particular sentence, 4
and (4) guiding probation officers and prison officials in 5
developing a program to meet the defendant’s needs. United 6
States v. Molina, 356 F.3d 269, 277 (2d Cir. 2003) (citing S. 7
Rep. No. 98-225, at 79-80 (1983), as reprinted in 1984 8
U.S.C.C.A.N. 3182, 3262-63). The district court must meet this 9
obligation post-Booker. Crosby, 397 F.3d at 116. 10
While this requirement does not require the district court 11
to issue a “full opinion in every case,” the length and level of 12
detail required varies depending upon the circumstances. Rita, 13
127 S. Ct. at 2468. When the district court imposes a Guidelines 14
sentence, it may not need to offer a lengthy explanation, 15
particularly where the parties have not argued meaningfully 16
against a Guidelines sentence under § 3553(a) or for a departure. 17
Id. Non-frivolous arguments for a non-Guidelines sentence, on 18
the other hand, may require more discussion. Id. Nonetheless, 19
we do not insist that the district court address every argument 20
the defendant has made or discuss every § 3553(a) factor 21
individually. Fernandez, 443 F.3d at 30. We do not “prescribe 22
any formulation a sentencing judge will be obliged to follow in 23
order to demonstrate discharge of the duty to ‘consider’ the 24
Guidelines. In other words, we will no more require ‘robotic 25

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3 As a matter of practicality, however, “our own ability to
uphold a sentence as reasonable will be informed by the district
court’s statement of reasons (or lack thereof) for the sentence
that it elects to impose.” Rattoballi, 452 F.3d at 134.
Accordingly, in the absence of a compelling accounting, we may be
forced to vacate a sentence that deviates significantly from the
advisory Guidelines range “where the record is insufficient, on
its own, to support the sentence as reasonable.” Id. at 135; see
also Pereira, 465 F.3d at 524. In its 2007 term, the Supreme
Court will address this issue in Gall v. United States. Rita,
127 S. Ct. at 2467.
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incantations’ by district judges than we did when the Guidelines 1
were mandatory.” Crosby, 397 F.3d 103, 113 (2d Cir. 2005). And 2
we remain disinclined to require a “more compelling accounting 3
the farther a sentence deviates from the advisory Guidelines 4
range.”3 Sindima, 488 F.3d at 85-86 (quoting Rattoballi, 452 5
F.3d at 134). 6
As with his previous claim of error, Villafuerte failed to 7
object below to the district court’s allegedly insufficient 8
statement of reasons. And as with the previous claim of error, 9
it is unclear whether we should review this unpreserved claim for 10
plain error. Several decisions have noted this uncertainty and 11
then decided not to address the issue because it was irrelevant 12
to their outcomes. See, e.g., Pereira, 465 F.3d at 520; Goffi, 13
446 F.3d at 321; United States v. Lewis, 424 F.3d 239, 243 (2d 14
Cir. 2005). Another decision applied plain error analysis but 15
without discussing why a sentencing error based on § 3553(c) is 16
not afforded an exception. See Molina, 356 F.3d at 277. And 17
another decision held that failure to comply with § 3553(c), at 18

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least where there cannot be adequate appellate review, can render 1
a sentence “imposed in violation of law,” requiring vacatur. See 2
United States v. Zackson, 6 F.3d 911, 923-24 (2d Cir. 1993). 3
We now hold that plain error analysis in full rigor applies 4
to unpreserved claims that a district court failed to comply with 5
§ 3553(c). Section 3553(c)’s long-standing requirements present 6
no novel or complex issues meriting greater consideration for its 7
violation: A defense counsel can quickly decide whether he is 8
dissatisfied with the district court’s explanation and promptly 9
object. See Keppler, 2 F.3d at 24; see also United States v. 10
Romero, - F.3d -, 2007 WL 1874231, at *4 (10th Cir. June 29, 11
2007) (noting that requiring objection for failure to follow a 12
well-known requirement such as § 3553(c) is not burdensome). 13
Further, the public interest underlying § 3553(c) is better 14
advanced when the district court is informed of its error 15
promptly at sentencing so that it can promptly correct it rather 16
than after a lengthy period of appellate review; to the extent 17
inadequately stated reasons for the sentence erode public trust 18
and understanding, correction earlier rather than later promotes 19
respect for the process. See Lewis, 424 F.3d at 247. The 20
district court is also better positioned to articulate its 21
reasons during the first sentencing hearing rather than long 22
after the fact. Requiring the error to be preserved by an 23
objection creates incentives for the parties to help the district 24
court meet its obligations to the public and the parties. Cf. 25

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United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) 1
(stating that one of the policy goals of Rule 52(b) is “to 2
encourage timely objections and reduce wasteful reversals by 3
demanding strenuous exertion to get relief for unpreserved 4
error”). This holding is consistent with several of our sister 5
circuits. See, e.g., Romero, 2007 WL 1874231, at *4; Eversole, 6
487 F.3d at 1035 (“[C]ompliance with section 3553(c) . . . 7
generally will not amount to plain error because proof that it 8
affects the defendant’s substantial rights is difficult.”); 9
United States v. Gilman, 478 F.3d 440, 447 (1st Cir. 2007); 10
United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006). 11
Putting aside our doubts as to whether the district court 12
failed to comply with § 3553(c), any such error is certainly not 13
plain. The district court imposed a sentence at the bottom of 14
the Guidelines range, and such sentences often will not require 15
lengthy explanation. See Rita, 127 S. Ct. at 2468. And the 16
district court did not blindly rest on the existence of the 17
Guidelines: It stated that the Guidelines already accounted for 18
the § 3553(a) factors in this case. Moreover, it found that the 19
bottom of the Guidelines range was “a fair sentence” given 20
Villafuerte’s conduct, which can be a proper basis for imposing a 21
particular sentence. See United States v. Jones, 460 F.3d 191, 22
195 (2d Cir. 2006) (“[T]he judge is not prohibited from including 23
in [his] consideration [of the § 3553(a) factors] the judge’s own 24
sense of what is a fair and just sentence under all the 25

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circumstances.”). While the district court did not recite its 1
thoughts on each of the § 3553(a) factors, it is clear that we 2
impose no such general requirement. See Goffi, 446 F.3d at 321. 3
“[W]e will not conclude that a district judge shirked [his] 4
obligation to consider the § 3553(a) factors simply because []he 5
did not discuss each one individually or did not expressly parse 6
or address every argument relating to those factors that the 7
defendant advanced.” Fernadez, 443 F.3d at 30. 8
The district court was not mute at sentencing; it offered 9
reasons for rejecting Villafuerte’s arguments for a non- 10
Guidelines sentence. It stated that it rejected Villafuerte’s 11
argument with respect to his drug abuse because the crime was 12
motivated by money rather than drug use. It also explained that 13
it found his argument with respect to his family situation 14
irrelevant under the circumstances. Finally, the district court 15
stated that it would not consider an earlier drug bust involving 16
Villafuerte in which marijuana was found because no conviction 17
resulted. Given this level of detail, it is not obvious that the 18
district court was derelict in discharging its § 3553(c) duty. 19
CONCLUSION 20
The judgment of the district court is AFFIRMED. 21

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