
    UNITED STATES of America, Appellee, v. FNU LNU, aka Herbert Wilfredo, aka Richardo Hernandez, aka Giron Diaz, Defendant-Appellant.
    No. 13-1900-cr.
    United States Court of Appeals, Second Circuit.
    Sept. 22, 2014.
    Randall D. Unger, Law Offices of Randall D. Unger, Bayside, NY, for defendant-appellant.
    Matthew L. Schwartz, Kathryn M. Martin, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for appellee.
    PRESENT: JOSÉ A. CABRANES and RAYMOND J. LOHIER, JR., Circuit Judges. PAUL A. ENGELMAYER, District Judge.
    
      
       The Honorable Paul A. Engelmayer, of the United States District Court for the Southern District of New York, sitting by designation.
    
   SUMMARY ORDER

Defendant appeals the judgment of the District Court sentencing him principally to a term of 72 months’ imprisonment after being found guilty by a jury of false statements in application for a passport, in violation of 18 U.S.C. § 1542, false statements in applications for food stamps, in violation of 18 U.S.C. § 1001(a)(2) and (3), false statements in applications for social security benefits, in violation of 42 U.S.C. § 1383a(a)(l) and (2), and three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A. On appeal, defendant contends (1) that he was denied effective assistance of counsel because his counsel did not assert an insanity defense at trial, and (2) that the sentence imposed by the District Court was both proeedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

DISCUSSION

A. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel’s conduct “fell below an objective standard of reasonableness” and “affirmatively prove prejudice,” showing that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

However, we decline to address defendant’s claim at this time since “a motion brought under [28 U.S.C.] § 2255 is preferable to direct appeal for deciding claims of ineffective assistance.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

B. Procedural and Substantive Unreasonableness

“Criminal sentences are generally reviewed for reasonableness, which requires an examination of the length of the sentence (substantive reasonableness) as well as the procedure employed in arriving at the sentence (procedural reasonableness).” United States v. Chu, 714 F.3d 742, 746 (2d Cir.2013) (internal quotation marks omitted). As we have explained, “[a] district court commits procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.2012) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). A district court is said to err “substantively” 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 (2d Cir.2008) (en banc) (internal quotation marks omitted). “[W]hen conducting substantive review, we take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Id. at 190; see generally United States v. Park, 758 F.3d 193 (2d Cir.2014).

Because defendant did not object at sentencing to the District Court’s alleged failure to explain its reasoning, we review his procedural challenge for “plain error.” United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.2007). Defendant argues that the District Court’s sentence was procedurally unreasonable because the court (1) failed to calculate the applicable Guidelines range and (2) failed to give proper consideration to the 18 U.S.C. § 3553(a) factors. Neither claim has merit.

i. “Procedural Reasonableness”

“A district court satisfies its obligation to make the requisite specific factual findings when it explicitly adopts the factual findings set forth in the presentence report.” United States v. Molina, 356 F.3d 269, 275 (2d Cir.2004). The District Court here expressly adopted the Presentence Report and thereby fulfilled its obligation.

The District Court also gave adequate consideration to the § 3553(a) factors. It is well settled that a judge “need not utter robotic incantations repeating each factor that motivates a sentence.” Park, 758 F.3d at 197 (internal quotation marks omitted). Rather, a district court “demonstrate[s] the adequate discharge of the duty to ‘consider’ matters relevant to sentencing” if the court “is aware of both the statutory requirements and the sentencing range or ranges that are arguably applicable, and nothing in the record indicates misunderstanding about such materials or misper-ception about their relevance[.]” United States v. Fleming, 397 F.3d 95, 100 (2d Cir.2005). Indeed, we have acknowledged that “[e]onsideration of the § 3553(a) factors is not a cut-and-dried process of fact-finding and calculation; instead, a district judge must contemplate the interplay among the many facts in the record and the statutory guideposts.” United States v. Fernandez, 443 F.3d 19, 29 (2d Cir.2006).

The District Court plainly contemplated the facts of the case and the relevance of numerous § 3553(a) factors throughout the sentencing hearing. At different parts of the hearing, the District Court focused on the history and characteristics of the defendant, the nature and characteristics of the offense, and the applicable Sentencing Guidelines range. As such, “we will not conclude that a district judge shirked [his] obligation to consider the § 3553(a) factors simply because [he] did not discuss each one individually or did not expressly parse or address every argument relating to those factors that the defendant advanced.” Id. at 30.

ii. “Substantive Reasonableness”

Similarly, there is no merit to defendant’s claim of substantive unreasonableness. Considering the totality of the circumstances and the longstanding nature of the defendant’s criminal activity, we cannot conclude that his sentence constitutes a “manifest injustice,” “shockfs] the conscience,” or is in any other way substantively unreasonable. United States v. Rigas, 583 F.3d 108, 122-23 (2d Cir.2009) (internal quotation marks omitted); see Park, 758 F.3d at 199-202 (describing “substantive unreasonableness”). The District Court’s 72-month sentence— which is well within the calculated Guidelines range of 42 to 96 months — is plainly reasonable.

CONCLUSION

We have considered all of appellant’s arguments and find them to be without merit. Accordingly, with the exception of appellant’s ineffective assistance of counsel claim, which we decline to review on direct appeal, we AFFIRM the judgment of the District Court.  