United States v. Torres , 558 F. App'x 123 ( 2014 )


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  •      13-1412-cr
    USA v. Torres
    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 Thurgood Marshall United
    3       States Courthouse, 40 Foley Square, in the City of New York,
    4       on the 17th day of March, two thousand fourteen.
    5
    6       PRESENT: DENNIS JACOBS,
    7                PIERRE N. LEVAL,
    8                ROSEMARY S. POOLER,
    9                              Circuit Judges.
    10
    11       - - - - - - - - - - - - - - - - - - - -X
    12       UNITED STATES OF AMERICA,
    13                Appellee,
    14
    15                    -v.-                                               13-1412-cr
    16
    17       JANCARLOS G. TORRES,
    18                Defendant-Appellant.1
    19       - - - - - - - - - - - - - - - - - - - -X
    20
    21       FOR APPELLANT:                        EDWARD S. ZAS, Of Counsel,
    22                                             Federal Defenders of New York,
    23                                             Inc., New York, New York.
    24
    1
    The Clerk of Court is directed to amend the
    caption as above.
    1
    1   FOR APPELLEE:              CHRISTOPHER CAFFARONE, Assistant
    2                              United States Attorney (Amy
    3                              Busa, Assistant United States
    4                              Attorney, on the brief), for
    5                              Loretta E. Lynch, United States
    6                              Attorney for the Eastern
    7                              District of New York, New York,
    8                              New York.
    9
    10        Appeal from a sentence of the United States District
    11   Court for the Eastern District of New York (Bianco, J.).
    12
    13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    14   AND DECREED that the judgment of the district court be
    15   AFFIRMED.
    16
    17        Jancarlos Torres appeals from a judgment of conviction
    18   entered on April 16, 2013, revoking his supervised release
    19   and sentencing him to 18 months’ imprisonment to be followed
    20   by one year of supervised release. He challenges the
    21   procedural and substantive reasonableness of his sentence.
    22   We assume the parties’ familiarity with the underlying
    23   facts, the procedural history, and the issues presented for
    24   review.
    25
    26        We review criminal sentences deferentially, for
    27   reasonableness only. See Gall v. United States, 
    552 U.S. 28
      38, 51 (2007) (“The fact that the appellate court might
    29   reasonably have concluded that a different sentence was
    30   appropriate is insufficient to justify reversal of the
    31   district court.”). “Reasonableness review requires an
    32   examination of the length of the sentence (substantive
    33   reasonableness) as well as the procedure employed in
    34   arriving at the sentence (procedural reasonableness).”
    35   United States v. Johnson, 
    567 F.3d 40
    , 51 (2d Cir. 2009).
    36   The standard of review for both inquiries is abuse of
    37   discretion. United States v. Verkhoglyad, 
    516 F.3d 122
    , 127
    38   (2d Cir. 2008).
    39
    40        Procedural Challenge. “A district court commits
    41   procedural error where it fails to calculate (or improperly
    42   calculates) the Sentencing Guidelines range, treats the
    43   Sentencing Guidelines as mandatory, fails to consider the
    44   [18 U.S.C.] § 3553(a) factors, selects a sentence based on
    45   clearly erroneous facts, or fails adequately to explain the
    46   chosen sentence.” United States v. Robinson, 
    702 F.3d 22
    ,
    47   38 (2d Cir. 2012) (citing 
    Gall, 552 U.S. at 51
    ).
    2
    1        Torres argues that his 18-month sentence–-pronounced
    2   orally at sentencing, and memorialized in writing on the
    3   district court’s docket (Docket Entry 34) and in its Final
    4   Judgment--was procedurally unreasonable because the
    5   Statement of Reasons issued simultaneously with the written
    6   judgment purports to justify a sentence of only 16 months.
    7
    8        “[W]here there is a direct conflict between an
    9   unambiguous oral pronouncement of sentence and the written
    10   judgment and commitment, . . . the oral pronouncement, as
    11   correctly reported, must control.” United States v.
    12   Asuncion-Pimental, 
    290 F.3d 91
    , 93 (2d Cir. 2002) (per
    13   curiam) (citation omitted). Here, the written judgment and
    14   the earlier oral pronouncement of sentence agree. Since
    15   “‘the written statement of reasons has a clerical, and not
    16   substantive, origin[,]’” we are “‘unwilling[] to allow
    17   [those] written statements to obfuscate unambiguous
    18   reasoning given by a district court at the oral hearing[.]’”
    19   United States v. Gracesqui, 512 F. App’x 97, 99 (2d Cir.
    20   2013)(quoting United States v. Denny, 
    653 F.3d 415
    , 422 (6th
    21   Cir. 2011)).
    22
    23        There is no ambiguity in the district court’s oral
    24   sentence, and that sentence is confirmed by the written
    25   judgment and the relevant entry on the district court’s
    26   docket. Accordingly, we see no procedural error.
    27
    28        Substantive Challenge. Finally, Torres challenges his
    29   sentence as substantively unreasonable. “In reviewing [a
    30   sentence] for substantive reasonableness, we consider the
    31   totality of the circumstances, and reverse only in
    32   exceptional cases where the trial court’s decision cannot be
    33   located within the range of permissible decisions[.]”
    34   United States v. Mason, 
    692 F.3d 178
    , 181 (2d Cir. 2012)
    35   (internal quotation marks and citation omitted). The
    36   standard “provide[s] a backstop for those few cases that,
    37   although procedurally correct, would nonetheless damage the
    38   administration of justice because the sentence imposed was
    39   shockingly high, shockingly low, or otherwise unsupportable
    40   as a matter of law.” United States v. Rigas, 
    583 F.3d 108
    ,
    41   123 (2d Cir. 2009).
    42
    43        Torres, a citizen of Honduras, was sentenced for
    44   violating the terms of his supervised release by again
    45   entering the United States unlawfully--this time barely four
    46   months after his supervised release began. The 18-month
    47   sentence--within (though at the top of) the Guidelines
    3
    1   range, and 6 months below the statutory maximum--is well
    2   within the range of permissible decisions in these
    3   circumstances. The district court gave no undue weight to
    4   Torres’s four prior convictions for drunk driving; rather,
    5   it properly considered those dangerous crimes in light of
    6   Torres’s quick return to the United States in violation of
    7   his supervised release and in spite of the district court’s
    8   prior leniency. Torres’s “complete lack of respect for the
    9   law” and repeated attempts to enter the country illegally,
    10   the district court reasoned, warranted a sentence capable of
    11   specific and general deterrence. Tr. of Sentencing at 7,
    12   March 27, 2013.
    13
    14        The district court’s analysis was consistent with the
    15   United States Sentencing Commission policy statement that
    16   “at revocation the court should sanction primarily the
    17   defendant’s breach of trust, while taking into account, to a
    18   limited degree, the seriousness of the underlying violation
    19   and the criminal history of the violator.” U.S.S.G. ch. 7,
    20   pt. A, intro. comment 3(b). In that light, we have little
    21   difficulty concluding that Torres’s sentence is not
    22   substantively unreasonable.
    23
    24        For the foregoing reasons, and finding no merit in
    25   Torres’s other arguments, we hereby AFFIRM the judgment of
    26   the district court and REMAND to the district court to
    27   correct the clerical error in the Statement of Reasons.
    28
    29                              FOR THE COURT:
    30                              CATHERINE O’HAGAN WOLFE, CLERK
    31
    4
    

Document Info

Docket Number: 13-1412-cr

Citation Numbers: 558 F. App'x 123

Judges: Jacobs, Leval, Pooler

Filed Date: 3/17/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024