United States v. Fong

No. 07-4222-cr

2009 | Cited 0 times | Second Circuit | February 9, 2009

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 9th day of February, two thousand nine.

PRESENT: HONORABLE JOSÉ A. CABRANES, HONORABLE SONIA SOTOMAYOR, HONORABLE REENA RAGGI, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of conviction, entered on September 19, 2007, is AFFIRMED.

Defendant John Fong pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute the controlled substance commonly known as "Ecstasy," see 21 U.S.C. §§ 841, 846, and one count of conspiring to import Ecstasy into the United States from a place outside thereof, see 21 U.S.C. § 963, and was sentenced principally to a term of 210 months' imprisonment, at the bottom of his Sentencing Guidelines range. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

On appeal, Fong first argues that the district court erred in declining to grant his request for a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2. We review a district court's application of the Sentencing Guidelines to the facts of a specific case using a de novo standard of review when the district court's determination is primarily legal in nature, and a clear error standard when the determination is primarily factual. See United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006). In this case, we apply the clear error standard because the district court's determination that Fong did not play a minor or minimal role in the conspiracy was primarily factual.1

We find no error in the district court's determination that a mitigating role adjustment was not appropriate here. The district court found that Fong "played a critical and trusted role in the conspiracy," a role that included (1) transport of a large quantity of Ecstacy in the course of several trips to and from Germany; (2) introduction to other members of the conspiracy, whom Fong met on a trip that he undertook without the accompaniment of his coconspirator and co-defendant, Franklin Rodriguez; (3) knowledge of the scope of the conspiracy; (4) receipt of substantial payment for his actions, including an $85,000 payment for the April smuggling trip; and (5) provision of crucial luggage space for the smuggling of Ecstacy that was not otherwise available to Rodriguez. Sentencing Tr. at 43-44. On this record, the district court did not clearly err in concluding that Fong had not satisfied his burden of demonstrating that he was "substantially less culpable than the average participant" in an Ecstacy importation and distribution conspiracy, United States v. Jeffers, 329 F.3d 94, 103 (2d Cir. 2003) (quoting U.S.S.G. § 3B1.2 app. n.3(A)); Sentencing Tr. at 43. Fong's argument that he was "not much more than Captain Rodrigu[e]z's ecstacy mule" does not support a contrary conclusion. Appellant's Br. at 23. See generally United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993) ("A defendant's courier status does not entitle him automatically to the benefit of the minor and minimal role adjustments. . . . A sentencing court is not bound to accept defendant's self-serving characterizations of his role in an offense. It is not defendant's exact role or status in the criminal activity that necessarily decides this question; rather, it is an assessment of defendant's culpability in the context of all the circumstances.").

Fong next contends that the district court erred in imposing a two-level enhancement for "abuse[ of] a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. "Proper application of § 3B1.3 requires satisfaction of two requirements: first, that [the defendant] occupied a 'position of trust,' and second, that [he] abused that position of trust to commit or conceal his crimes." United States v. Nuzzo, 385 F.3d 109, 115 (2d Cir. 2004). We review the district court's analysis of the first prong de novo. United States v. Santoro, 302 F.3d 76, 80 (2d Cir. 2002) ("What constitutes a 'position of trust' as defined by the guidelines is a question of law, which we review de novo."); we review the district court's factual findings regarding the second prong only for clear error. Id. ("[W]e will not overturn the district court's finding that the defendant abused a position of trust to significantly facilitate his offense unless it is clearly erroneous."); see also United States v. Nuzzo, 385 F.3d at 115.

"'Public or private trust' refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature." U.S.S.G. § 3B1.3, app. n.1. See also United States v. Hirsch, 239 F.3d 221, 227 (2d Cir. 2001) ("[T]he defendant's position must involve discretionary authority."). We have held that the "the primary trait that distinguishes a position of trust from other positions is the extent to which the position provides the freedom to commit a difficult-to-detect wrong." United States v. Laljie, 184 F.3d 180, 194 (2d Cir. 1999).

During the course of the conspiracy, Fong was a Master Sergeant in the Air National Guard employed as a "Load Master," a position which made Fong responsible for all cargo that was loaded, transported, and subsequently unloaded off of his military flights. The district court found that it was "plain that [Fong] had discretionary authority, that he held a position of public trust and responsibility, [and] that he had responsibility which he obtained because of his position in the military." Sentencing Tr. at 41. Fong contests this finding, arguing that his position was more akin to the forklift operator in United States v. Viola, 35 F.3d 37, 45 (2d Cir. 1994), abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997), or the postal employee in United States v. Cuff, 999 F.2d 1396, 1398 (9th Cir. 1993), who were found not to have held positions of trust.

We identify no error in the district court's finding that Fong occupied a position of public trust. While the record before the district court was somewhat limited with respect to Fong's general job responsibilities and the level of discretion he did (or did not) exercise as a Load Master, two salient facts support the district court's conclusion. First, Fong had discretion regarding his work schedule, i.e., the particular flights on which he would work, which permitted him, at Rodriguez's instruction, to schedule trips to Germany that would coincide with opportunities to obtain Ecstacy from Rodriguez's contacts. Second, and most crucially, although the personal luggage in which Fong smuggled significant quantities of Ecstacy was technically subject to inspection by the United States Customs Service, Fong's luggage was not inspected on any of his smuggling trips -- precisely the "lack of supervision" we have found to be characteristic of positions of trust. See, e.g., United States v. Thorn, 317 F.3d 107, 122 (2d Cir. 2003); United States v. Laljie, 184 F.3d at 195 (citing cases); United States v. Barrett, 178 F.3d 643, 646 (2d Cir. 1999) (holding that manager's position was one of trust because, inter alia, his "check requests were not questioned"). See generally United States. v. Castagnet, 936 F.2d 57, 62 (2d Cir. 1991) ("'[I]f one party is able to take criminal advantage of the relationship without fear of ready or quick notice by the second party, the second party has clearly placed a level of trust in the first.'" (quoting United States v. Hill, 915 F.2d 502, 506 (9th Cir. 1990))). In sum, viewed from the perspective of the victim of Fong's offense, the United States government, see United States v. Laljie, 184 F.3d at 195 ("Whether a given position is one of trust within the meaning of § 3B1.3 is to be viewed from the perspective of the offense victims."), it is readily apparent that Fong occupied a position of trust.

We also find no clear error in the district court's finding that Fong abused his position of trust "in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. Fong emphasizes that (1) he did not smuggle drugs in the planes' official cargo (for which he was responsible), but rather in his personal luggage; and (2) he only smuggled drugs on return flights to the United States on which he was "deadheading," i.e., on which he had no assigned responsibilities. Fong contends that these facts preclude a finding that Fong's position facilitated the commission or concealment of his offense. We disagree. Fong's ability to schedule himself to work on various flights to Germany in order to receive shipments of drugs to bring back to the United States, as well as his ability to evade detection when smuggling drugs in his luggage, were direct results of his position of trust and instrumental to the success of the conspiracy. As the district court correctly noted: "The only reason [Fong's] luggage is not being examined is because of his military position, and the only reason he is on the flight and has the opportunity to bring the luggage in is because of his military position." Sentencing Tr. at 21.

Fong's third and final contention is that his 210-month sentence is substantively unreasonable insofar as it is identical to the 210-month sentence imposed on his co-defendant Rodriguez, whom Fong asserts was far more culpable.2 In reviewing such a claim, "we will not substitute our own judgment for the district court's on the question of what is sufficient to meet the § 3553(a) considerations in any particular case," and will "set aside a district court's substantive determination only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions." United States v. Cavera, 550 F.3d 180, 189 (2nd Cir. 2008) (en banc) (internal quotation marks omitted). In short, our task is only "to patrol the boundaries of reasonableness, while heeding the Supreme Court's renewed message that responsibility for sentencing is placed largely in the precincts of the district courts." Id. at 191.

Fong argued at sentencing that although he and Rodriguez pleaded guilty to the same two counts, "there is a huge difference" between the culpability of the two and that Fong's sentence should reflect that difference. Sentencing Tr. at 4-5, 29-30. The government acknowledged that the co-defendants "ha[d] different roles in this crime," but argued that, under § 3553(a), "the distinction doesn't make much of a difference" because "the nature and circumstances of the offense," as committed by Fong, "are sufficiently serious as to warrant" a sentence within the Guidelines range of 210 to 262 months. Having heard these arguments, the district court -- after properly rejecting Fong's request for a mitigating role adjustment and declining to depart on various other grounds, id. at 44-45 -- recognized its obligation to consider the § 3553(a) factors, and concluded that a 210-moth sentence was "sufficient but no greater than necessary" to accomplish the purposes of § 3553(a) insofar as, inter alia, (1) Fong's offense was "very serious given the amount of drugs imported into the United States and the abuse of the defendant's military position to accomplish the smuggling," and (2) "[t]he need for deterrence is substantial given the fact that the defendant committed the offenses for substantial monetary gain." Id. at 46-47. The district court also noted that it had "carefully considered all of the personal factors relating to the defendant, including his family and military history, and [took] those into account in sentencing [Fong] to the bottom of the guideline sentencing range." Id. at 47.

In light of the district court's careful and thoughtful analysis, we cannot find that the sentence it imposed is outside the broad "range of permissible decisions." United States v. Cavera, 550 F.3d at 189.

For the foregoing reasons, the judgment of conviction is AFFIRMED.

1. Although Fong asserts that we should review the district court's determination de novo because there was "no dispute at all" regarding the relevant facts, Appellant's Br. at 17, he "has basically devoted [his] argument to disagreeing -- by reference to other evidence -- with the district court's determination" regarding his role in the offenses of conviction. United States v. Gotti, 459 F.3d at 349. The clear error standard is therefore appropriate. See id. We also note, however, that we would reach the same result upon de novo review.

2. We have stated that "[w]e do not, as a general matter, object to district courts' consideration of similarities and differences among co-defendants when imposing a sentence," and that "18 U.S.C. § 3553(a)(1) provides a natural and necessary basis for placing the actions of an individual defendant in the broader context of the crime he or she committed," United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other grounds by United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). Thus, Fong's claim is properly considered a challenge to the substantive reasonableness of the district court's application of the § 3553(a) factors.

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 9th day of February, two thousand nine.

PRESENT: HONORABLE JOSÉ A. CABRANES, HONORABLE SONIA SOTOMAYOR, HONORABLE REENA RAGGI, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of conviction, entered on September 19, 2007, is AFFIRMED.

Defendant John Fong pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute the controlled substance commonly known as "Ecstasy," see 21 U.S.C. §§ 841, 846, and one count of conspiring to import Ecstasy into the United States from a place outside thereof, see 21 U.S.C. § 963, and was sentenced principally to a term of 210 months' imprisonment, at the bottom of his Sentencing Guidelines range. We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

On appeal, Fong first argues that the district court erred in declining to grant his request for a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2. We review a district court's application of the Sentencing Guidelines to the facts of a specific case using a de novo standard of review when the district court's determination is primarily legal in nature, and a clear error standard when the determination is primarily factual. See United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006). In this case, we apply the clear error standard because the district court's determination that Fong did not play a minor or minimal role in the conspiracy was primarily factual.1

We find no error in the district court's determination that a mitigating role adjustment was not appropriate here. The district court found that Fong "played a critical and trusted role in the conspiracy," a role that included (1) transport of a large quantity of Ecstacy in the course of several trips to and from Germany; (2) introduction to other members of the conspiracy, whom Fong met on a trip that he undertook without the accompaniment of his coconspirator and co-defendant, Franklin Rodriguez; (3) knowledge of the scope of the conspiracy; (4) receipt of substantial payment for his actions, including an $85,000 payment for the April smuggling trip; and (5) provision of crucial luggage space for the smuggling of Ecstacy that was not otherwise available to Rodriguez. Sentencing Tr. at 43-44. On this record, the district court did not clearly err in concluding that Fong had not satisfied his burden of demonstrating that he was "substantially less culpable than the average participant" in an Ecstacy importation and distribution conspiracy, United States v. Jeffers, 329 F.3d 94, 103 (2d Cir. 2003) (quoting U.S.S.G. § 3B1.2 app. n.3(A)); Sentencing Tr. at 43. Fong's argument that he was "not much more than Captain Rodrigu[e]z's ecstacy mule" does not support a contrary conclusion. Appellant's Br. at 23. See generally United States v. Shonubi, 998 F.2d 84, 90 (2d Cir. 1993) ("A defendant's courier status does not entitle him automatically to the benefit of the minor and minimal role adjustments. . . . A sentencing court is not bound to accept defendant's self-serving characterizations of his role in an offense. It is not defendant's exact role or status in the criminal activity that necessarily decides this question; rather, it is an assessment of defendant's culpability in the context of all the circumstances.").

Fong next contends that the district court erred in imposing a two-level enhancement for "abuse[ of] a position of public . . . trust . . . in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. "Proper application of § 3B1.3 requires satisfaction of two requirements: first, that [the defendant] occupied a 'position of trust,' and second, that [he] abused that position of trust to commit or conceal his crimes." United States v. Nuzzo, 385 F.3d 109, 115 (2d Cir. 2004). We review the district court's analysis of the first prong de novo. United States v. Santoro, 302 F.3d 76, 80 (2d Cir. 2002) ("What constitutes a 'position of trust' as defined by the guidelines is a question of law, which we review de novo."); we review the district court's factual findings regarding the second prong only for clear error. Id. ("[W]e will not overturn the district court's finding that the defendant abused a position of trust to significantly facilitate his offense unless it is clearly erroneous."); see also United States v. Nuzzo, 385 F.3d at 115.

"'Public or private trust' refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature." U.S.S.G. § 3B1.3, app. n.1. See also United States v. Hirsch, 239 F.3d 221, 227 (2d Cir. 2001) ("[T]he defendant's position must involve discretionary authority."). We have held that the "the primary trait that distinguishes a position of trust from other positions is the extent to which the position provides the freedom to commit a difficult-to-detect wrong." United States v. Laljie, 184 F.3d 180, 194 (2d Cir. 1999).

During the course of the conspiracy, Fong was a Master Sergeant in the Air National Guard employed as a "Load Master," a position which made Fong responsible for all cargo that was loaded, transported, and subsequently unloaded off of his military flights. The district court found that it was "plain that [Fong] had discretionary authority, that he held a position of public trust and responsibility, [and] that he had responsibility which he obtained because of his position in the military." Sentencing Tr. at 41. Fong contests this finding, arguing that his position was more akin to the forklift operator in United States v. Viola, 35 F.3d 37, 45 (2d Cir. 1994), abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997), or the postal employee in United States v. Cuff, 999 F.2d 1396, 1398 (9th Cir. 1993), who were found not to have held positions of trust.

We identify no error in the district court's finding that Fong occupied a position of public trust. While the record before the district court was somewhat limited with respect to Fong's general job responsibilities and the level of discretion he did (or did not) exercise as a Load Master, two salient facts support the district court's conclusion. First, Fong had discretion regarding his work schedule, i.e., the particular flights on which he would work, which permitted him, at Rodriguez's instruction, to schedule trips to Germany that would coincide with opportunities to obtain Ecstacy from Rodriguez's contacts. Second, and most crucially, although the personal luggage in which Fong smuggled significant quantities of Ecstacy was technically subject to inspection by the United States Customs Service, Fong's luggage was not inspected on any of his smuggling trips -- precisely the "lack of supervision" we have found to be characteristic of positions of trust. See, e.g., United States v. Thorn, 317 F.3d 107, 122 (2d Cir. 2003); United States v. Laljie, 184 F.3d at 195 (citing cases); United States v. Barrett, 178 F.3d 643, 646 (2d Cir. 1999) (holding that manager's position was one of trust because, inter alia, his "check requests were not questioned"). See generally United States. v. Castagnet, 936 F.2d 57, 62 (2d Cir. 1991) ("'[I]f one party is able to take criminal advantage of the relationship without fear of ready or quick notice by the second party, the second party has clearly placed a level of trust in the first.'" (quoting United States v. Hill, 915 F.2d 502, 506 (9th Cir. 1990))). In sum, viewed from the perspective of the victim of Fong's offense, the United States government, see United States v. Laljie, 184 F.3d at 195 ("Whether a given position is one of trust within the meaning of § 3B1.3 is to be viewed from the perspective of the offense victims."), it is readily apparent that Fong occupied a position of trust.

We also find no clear error in the district court's finding that Fong abused his position of trust "in a manner that significantly facilitated the commission or concealment of the offense." U.S.S.G. § 3B1.3. Fong emphasizes that (1) he did not smuggle drugs in the planes' official cargo (for which he was responsible), but rather in his personal luggage; and (2) he only smuggled drugs on return flights to the United States on which he was "deadheading," i.e., on which he had no assigned responsibilities. Fong contends that these facts preclude a finding that Fong's position facilitated the commission or concealment of his offense. We disagree. Fong's ability to schedule himself to work on various flights to Germany in order to receive shipments of drugs to bring back to the United States, as well as his ability to evade detection when smuggling drugs in his luggage, were direct results of his position of trust and instrumental to the success of the conspiracy. As the district court correctly noted: "The only reason [Fong's] luggage is not being examined is because of his military position, and the only reason he is on the flight and has the opportunity to bring the luggage in is because of his military position." Sentencing Tr. at 21.

Fong's third and final contention is that his 210-month sentence is substantively unreasonable insofar as it is identical to the 210-month sentence imposed on his co-defendant Rodriguez, whom Fong asserts was far more culpable.2 In reviewing such a claim, "we will not substitute our own judgment for the district court's on the question of what is sufficient to meet the § 3553(a) considerations in any particular case," and will "set aside a district court's substantive determination only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions." United States v. Cavera, 550 F.3d 180, 189 (2nd Cir. 2008) (en banc) (internal quotation marks omitted). In short, our task is only "to patrol the boundaries of reasonableness, while heeding the Supreme Court's renewed message that responsibility for sentencing is placed largely in the precincts of the district courts." Id. at 191.

Fong argued at sentencing that although he and Rodriguez pleaded guilty to the same two counts, "there is a huge difference" between the culpability of the two and that Fong's sentence should reflect that difference. Sentencing Tr. at 4-5, 29-30. The government acknowledged that the co-defendants "ha[d] different roles in this crime," but argued that, under § 3553(a), "the distinction doesn't make much of a difference" because "the nature and circumstances of the offense," as committed by Fong, "are sufficiently serious as to warrant" a sentence within the Guidelines range of 210 to 262 months. Having heard these arguments, the district court -- after properly rejecting Fong's request for a mitigating role adjustment and declining to depart on various other grounds, id. at 44-45 -- recognized its obligation to consider the § 3553(a) factors, and concluded that a 210-moth sentence was "sufficient but no greater than necessary" to accomplish the purposes of § 3553(a) insofar as, inter alia, (1) Fong's offense was "very serious given the amount of drugs imported into the United States and the abuse of the defendant's military position to accomplish the smuggling," and (2) "[t]he need for deterrence is substantial given the fact that the defendant committed the offenses for substantial monetary gain." Id. at 46-47. The district court also noted that it had "carefully considered all of the personal factors relating to the defendant, including his family and military history, and [took] those into account in sentencing [Fong] to the bottom of the guideline sentencing range." Id. at 47.

In light of the district court's careful and thoughtful analysis, we cannot find that the sentence it imposed is outside the broad "range of permissible decisions." United States v. Cavera, 550 F.3d at 189.

For the foregoing reasons, the judgment of conviction is AFFIRMED.

1. Although Fong asserts that we should review the district court's determination de novo because there was "no dispute at all" regarding the relevant facts, Appellant's Br. at 17, he "has basically devoted [his] argument to disagreeing -- by reference to other evidence -- with the district court's determination" regarding his role in the offenses of conviction. United States v. Gotti, 459 F.3d at 349. The clear error standard is therefore appropriate. See id. We also note, however, that we would reach the same result upon de novo review.

2. We have stated that "[w]e do not, as a general matter, object to district courts' consideration of similarities and differences among co-defendants when imposing a sentence," and that "18 U.S.C. § 3553(a)(1) provides a natural and necessary basis for placing the actions of an individual defendant in the broader context of the crime he or she committed," United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other grounds by United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). Thus, Fong's claim is properly considered a challenge to the substantive reasonableness of the district court's application of the § 3553(a) factors.

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