United States v. Goris ( 2018 )

17-0163
United States v. Goris
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 ASUMMARY ORDER@). A PARTY
CITING TO 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
29th day of January, two thousand eighteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
-v.- 17-0163
PEDRO GORIS, a/k/a Pedro Goriz,
a/k/a Pedro Abreu,
Defendant-Appellant.
____________________________________
FOR DEFENDANT-APPELLANT: Edward S. Zas, Federal Defenders
of New York, Inc., New York, NY.
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FOR APPELLEE: Lara Pomerantz and Anna M. Skotko,
Assistant United States
Attorneys, for Geoffrey S. Berman,
Interim United States Attorney for
the Southern District of New York,
New York, NY.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Pedro Goris pleaded guilty to illegal reentry under 8
U.S.C. § 1326(a) and (b)(2) in the United States District Court
for the Southern District of New York (Forrest, J.). The
district court sentenced Goris to a 36-month term of
imprisonment, to run consecutively to an undischarged 60-month
term of imprisonment previously imposed on Goris in state court
for an unrelated drug offense. Goris challenges as
substantively unreasonable the district court’s decision to
impose his federal sentence consecutively to his state
sentence. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.
Goris argues that the consecutive imposition of his
36-month federal sentence is substantively unreasonable
because he will serve a total of 96 months in prison--a sentence
above the Guidelines Sentencing Range of 51 to 63 months he
claims would have applied if his state-law drug offense had been
prosecuted as a federal offense alongside his illegal-entry
offense. See U.S.S.G. § 3D1.1 (laying out the procedure for
determining the total offense level in a case involving a
multiple-count conviction).
We review for substantive reasonableness under “a
particularly deferential form of [the] abuse-of-discretion
[standard].” United States v. Cavera, 550 F.3d 180, 188 n.5
(2d Cir. 2008) (en banc). We will set aside the district
court’s decision “only in [an] exceptional case[] where [that]
decision ‘cannot be located within the range of permissible
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decisions.’” Id. at 189 (quoting United States v. Rigas, 490
F.3d 208, 238 (2d Cir. 2007)). This is not an exceptional case.
A district court is free to require that a new sentence run
consecutively to an undischarged term of imprisonment in order
to “achieve a reasonable punishment for the [new] offense.”
U.S.S.G § 5G1.3(d); see United States v. Maria, 186 F.3d 65,
72 (2d Cir. 1999). The court’s decision to do so in this case
was permissible because it was guided by a reasonable
application of the relevant factors. See U.S.S.G § 5G1.3(d),
comment. 4; 18 U.S.C. § 3553(a); see also United States v.
Coppola, 671 F.3d 220, 253 (2d Cir. 2012).
In particular, the court observed that both of the offenses
at issue were serious; that Goris had been convicted of several
other serious offenses and had served at least one substantial
prison sentence; that this was not Goris’s first conviction for
entering the United States illegally; that Goris had “been
deported a number of times” and “reentered illegally a number
of times”; and that there was “[no]thing in the record [to]
indicate[] that [Goris] ha[d] changed” or “that [he] w[ould]
not try to reenter again.” App’x. at 98, 102. The court then
reasonably concluded that, “without a separate significant
sentence that recognizes the separateness of [the] crime [of
illegal entry from the crime of illegal possession of a
controlled substance], [Goris would be] likely to reenter
again.” Id. at 103-04. This was no abuse of discretion.
Goris also asserts that United States v. Witte, 515 U.S.
389 (1995), stands for the proposition that a defendant’s
punishment should not depend on whether he is prosecuted in a
single proceeding or in two separate proceedings, and hence,
the consecutive sentence that he received is unreasonable. But
Witte concerns § 5G1.3(b) of the Guidelines, which protects
defendants “against having the length of [their] sentence
multiplied by duplicative consideration of the same criminal
conduct.” Witte, 515 U.S. at 405. In this case, the conduct
was separate: Goris illegally reentered the country and
separately committed a controlled substance offense.
Therefore, Goris’s reliance on Witte is not persuasive.
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We have considered Goris’s remaining arguments and find
them to be without merit. For the foregoing reasons, we AFFIRM
the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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