United States v. Vasquez ( 2015 )

14-4266
United States v. Vasquez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 11th day of December, two thousand fifteen.
PRESENT: GUIDO CALABRESI,
GERARD E. LYNCH,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
———————————————————————
UNITED STATES OF AMERICA,
Appellee,
v. No. 14-4266
PIERRE VASQUEZ, a/k/a Peter,
Defendant-Appellant.
———————————————————————
APPEARING FOR APPELLANT: JILLIAN S. HARRINGTON, Monroe
Township, New Jersey (Martin J. Siegel, New
York, New York, on the brief).
APPEARING FOR APPELLEES: JESSICA K. FENDER, Assistant United States
Attorney (Amy Lester, Assistant United States
Attorney, on the brief), for Preet Bharara,
United States Attorney for the Southern District
of New York, New York, New York.
*
The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
Appeal from the United States District Court for the Southern District of New
York (Denny Chin, J., sitting by designation).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Pierre Vasquez appeals his sentence of 56 months for a
Grade B violation of a term of his supervised release, U.S.S.G. § 7B1.1(a)(2), imposed in
connection with his underlying conviction for conspiracy to distribute, and possess with
intent to distribute, cocaine, 21 U.S.C. § 846, a Class A felony. Vasquez violated his
release terms by committing a second-degree assault, N.Y. Penal Law § 120.05, on police
officers who attempted to arrest him after they discovered cocaine in a suitcase in the
trunk of the car he was driving. We assume the parties’ familiarity with the facts and
procedural history, and reference them only as necessary to explain our reasoning.
First, Vasquez argues that the district court erred in finding that he knew about the
cocaine in the suitcase. He claims that the government failed to prove this fact by a
preponderance of the evidence, and that the court should have credited his account that
the cocaine was placed in the car by his passenger without his knowledge. The district
court based its finding on the facts stipulated by the parties, including the fact that he
attempted to flee when he was apprehended, see United States v. Mundy, 539 F.3d 154,
157 n.2 (2d Cir. 2008) (“[P]roof of flight may be received as evidence of consciousness
of guilt.”); on Vasquez’s extensive history of drug offenses; and on Vasquez’s own
testimony and its credibility, see United States v. Medunjanin, 752 F.3d 576, 589 (2d Cir.
2
2014) (“We may not disturb the factfinder’s credibility assessments or its choices
between permissible inferences.”). “[W]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. at 585.
The district court therefore did not clearly err in finding that Vasquez more likely than
not knew about the cocaine in the car.
Next, Vasquez challenges his sentence as substantively unreasonable, arguing that
the district court failed to follow the Guidelines Manual’s admonition that “at revocation
the court should sanction primarily the defendant’s breach of trust, while taking into
account, to a limited degree, the seriousness of the underlying violation and the criminal
history of the violator.” U.S.S.G. ch. 7, pt. A.3(b). Vasquez claims that the district court
instead impermissibly based its sentence on (1) the “unsubstantiated” finding regarding
the cocaine in the suitcase, (2) his criminal history, (3) the government’s “vindictive”
recommendation of 60 months of imprisonment, and (4) the fact that this was the
government’s only opportunity to hold Vasquez responsible for the narcotics-related
conduct constituting his violation of supervised release, which Vasquez claims the
government would be unable to prove in a criminal trial. In fact, although the district
court considered Vasquez’s criminal history and the conduct underlying the violation, the
primary reason why it imposed a sentence above the Guidelines’ recommendation of 12
to 18 months of imprisonment, see U.S.S.G. § 7B1.4, was precisely Vasquez’s violation
of the district court’s trust. The district court emphasized the very lenient sentence that
Vasquez had requested and had been given in connection with his underlying conviction.
3
Indeed, during that earlier sentencing, Vasquez had acknowledged that an extended
period of incarceration would be appropriate were he to fail to abide by the terms of his
release. Vasquez’s violation of his supervised release, given the district court’s lenity,
was a clear breach of trust, for which the district court was justified in imposing a
sentence beyond the Guidelines’ recommendation. The 56-month sentence Vasquez
received was within the permissible statutory range, see 18 U.S.C. § 3583(e)(3)
(providing a five-year maximum sentence for violations of supervised release when the
underlying conviction was for a Class A felony), and it was amply justified by Vasquez’s
conduct in violating the terms of supervised release after successfully arguing for a
lenient sentence based on claims of rehabilitation, see United States v. Rubin, 743 F.3d
31, 39-40 (2d Cir. 2014) (a sentence is substantively reasonable unless it “cannot be
located within the range of permissible decisions”).
Finally, Vasquez argues that his sentence was procedurally unreasonable because
the district court failed properly to consider the 18 U.S.C. § 3553(a) sentencing factors
and sufficiently to explain its reasons for departing from the Guidelines range. However,
the Sentencing Commission’s sentencing ranges for violations of supervised release are
“policy statements rather than formal guidelines.” United States v. Verkhoglyad, 516 F.
3d 122, 128 (2d Cir. 2008). “[A] court’s statement of its reasons for going beyond non-
binding policy statements in imposing a sentence . . . need not be as specific as has been
required when courts departed from guidelines that were, before Booker, considered to be
mandatory.” Id. at 132-33 (alteration omitted). In this case, the district court explicitly
4
stated that it considered the statutory factors, giving an account of the nature and
circumstances of Vasquez’s violation, describing Vasquez’s criminal history, and noting
that Vasquez’s lenient sentence in the underlying case represented a significant “break”
that failed to dissuade Vasquez from reverting to criminal behavior. The district court
provided sufficient reasons for its sentence and showed that it appropriately considered
the § 3553(a) factors.
We have considered Vasquez’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5