United States v. Quinones ( 2012 )

10-4336-pr (L)
United States v. Quinones
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RALPH K. WINTER,
10 REENA RAGGI,
11 Circuit Judges.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 United States,
15 Appellee,
16 10-4336-pr(L)
17 -v.- 10-4362-pr(CON)
18 10-4418-pr(CON)*
19 Anthony Velez, Felix Santiago, 11-630-pr(CON)
20 Defendants-Appellants,
21
22 Alberto Quinones, Manuel Reyes, Jr.,
23 Defendants.
24 - - - - - - - - - - - - - - - - - - - -X
25
26 FOR DEFENDANT-APPELLANT SANTIAGO: Marjorie M. Smith,
27 Piermont, NY.
28
29
30 * 10-4418-pr (Con) was dismissed by the order filed
31 July 19, 2011.
1
1 FOR DEFENDANT-APPELLANT VELEZ: Stanislao A. German, Law
2 Office of Stanislao A.
3 German, New York, NY.
4
5 FOR APPELLEE UNITED STATES: Zachary Feingold (Katherine
6 Polk Failla, on the brief),
7 Assistant United States
8 Attorney, for Preet
9 Bharara, United States
10 Attorney, Southern District
11 of New York, New York, NY.
12
13 Appeal from a judgment of the United States District
14 Court for the Southern District of New York (Cote, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
17 AND DECREED that the judgment of the District Court is
18 AFFIRMED.
19
20 This appeal arises out of the prosecutions, guilty
21 pleas, convictions, and sentences of the two Defendants-
22 Appellants, Anthony Velez and Felix Santiago. Velez appeals
23 his judgment of conviction on the grounds that the district
24 court erred in refusing to allow withdrawal of his guilty
25 plea. Santiago appeals the length and one of the conditions
26 of his term of supervised release. We assume the parties’
27 familiarity with the underlying facts, the procedural
28 history of the case, and the issues on appeal.
29
2
1 [1] We review for abuse of discretion a district court’s
2 decision denying a motion to withdraw a guilty plea without
3 a hearing. United States v. Doe, 537 F.3d 204, 211-12 (2d
4 Cir. 2008). We affirm for substantially the same reasons
5 stated in the district court’s thorough and well-reasoned
6 decision.
7 Velez argues that the district court erred by failing
8 to hold an evidentiary hearing. We disagree. For the
9 purposes of deciding Velez’s motion to withdraw his plea,
10 the district court assumed the truth of Velez’s factual
11 assertions in concluding that he failed to establish “a fair
12 and just reason” for withdrawal of the plea. Fed. R. Crim.
13 P. 11(d)(2)(B); see Doe, 537 F.3d at 210. Moreover, during
14 his allocution, Velez affirmed that his plea was knowing and
15 voluntary and that he was satisfied with his representation.
16 These admissions are “a formidable barrier” to challenging
17 the validity of the plea because they “carry a strong
18 presumption of verity.” Blackledge v. Allison, 431 U.S. 63,
19 74 (1977). Velez has not overcome his own admissions.
20
21 Santiago raises two challenges to his order of
22 supervised release. Neither is persuasive.
23 [2] Congress mandates a term of supervised release of at
24 least three years for a conviction for conspiracy to
3
1 distribute and to possess narcotics with the intent to
2 distribute. 21 U.S.C. § 841(b)(1)(C). The district court
3 did not abuse its discretion by imposing a five-year term of
4 supervision for Santiago. See United States v. Cavera, 550
5 F.3d 180, 189 (2d Cir. 2008) (en banc) (identifying abuse of
6 discretion as the standard of review).
7 Judge Cote justified the five-year term of supervision
8 on the basis of Santiago’s substantial risk of recidivism.
9 The risk is considerable; Santiago had resumed essentially
10 the same criminal conduct upon his release from imprisonment
11 for crimes similar to those that resulted in his arrest and
12 conviction here. Given his quick return to criminal
13 activity after his previous term of incarceration, his
14 Category V Criminal History, and the need to afford adequate
15 deterrence to Santiago and others, the district court did
16 not abuse its discretion in concluding that Santiago needs
17 more than the statutory minimum term of supervised release.
18 See 18 U.S.C. § 3583 (identifying factors to consider in
19 determining appropriate term of supervision).
20 Santiago contends that the district court was operating
21 under the erroneous assumption that the statutory minimum
22 term of supervision for Santiago’s conviction was five
23 years. Santiago relies on a statement made during his plea
24 conference nearly three months before the sentencing
4
1 hearing, and before the Pre-Sentencing Report, which
2 reflects the correct minimum term of supervision. There is
3 no indication that the district court was influenced by any
4 such assumption.
5 [3] Santiago also challenges the district court’s
6 imposition of a special order of supervision that bars him
7 from incurring any new credit card charges or opening any
8 new credit lines without the permission of the Probation
9 Office.
10 “[T]rial courts traditionally have enjoyed broad
11 discretion to tailor the conditions of probation [i.e.,
12 supervised release] to the particular circumstances of each
13 case, provided that such conditions are reasonably related
14 to the dual goals of rehabilitating the offender and
15 protecting the public.” United States v. A-Abras Inc., 185
16 F.3d 26, 30 (2d Cir. 1999). A district court can impose a
17 special condition to the extent that such condition is
18 “reasonably related” to: (a) the nature and circumstances of
19 the offense and the history and characteristics of the
20 defendant; (b) the need for the sentence imposed to afford
21 adequate deterrence to criminal conduct; (c) the need to
22 protect the public from further crimes of the defendant; and
23 (d) the need to provide the defendant with needed
24 educational or vocational training, medical care, or other
5
1 correctional treatment in the most effective manner. 18
2 U.S.C. § 3583(d)(1). “A condition of supervised release
3 need only be reasonably related to any one of these
4 factors.” United States v. Dupes, 513 F.3d 338, 344 (2d
5 Cir. 2008). Any special condition of supervised release
6 must also be consistent with “pertinent policy statements
7 issued by the Sentencing Commission” and “involve[] no
8 greater deprivation of liberty than is reasonably
9 necessary.” 18 U.S.C. § 3583(d).
10 The Pre-Sentencing Report reported that Santiago has
11 substantial debt and virtually no legitimate means of
12 servicing his debt. This suggests that Santiago’s debt was
13 incurred, in part, to finance his illegal activities and
14 that his inability to legitimately pay off the debt
15 increases the likelihood that he will resort to criminal
16 activity to service his debt.
17 Santiago argues that this type of condition is
18 unwarranted because no restitution or fine was imposed. See
19 U.S.S.G. § 5D1.3(d)(2). However, the condition can be
20 imposed in any case in which it may be appropriate. See
21 U.S.S.G. § 5D1.3(d); see also 18 U.S.C. § 3583(d) (providing
22 that a district court can impose conditions it “considers to
23 be appropriate”). The district court acted within its
24 discretion in imposing a special condition.
6
1 We have considered all of the Defendants-Appellants’
2 remaining arguments and find them to be without merit.
3 Accordingly, the judgment of the District Court is affirmed.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7