United States v. Pena-Castillo ( 2011 )

09-4058-cr
USA v. Pena-Castillo
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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of May, two thousand eleven.
PRESENT:
JOSEPH M. McLAUGHLIN,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
__________________________________________
United States of America,
Appellee,
v. 09-4058-cr
Euclides Pena-Castillo, also known as Willy Rosado, also known as Euclides Pena, also known as
Victor Matos, also known as German Carlos Lopez-Rivas,
Defendant-Appellant,
__________________________________________
RANDA D. MAHER, Law Offices of Randa D. Maher, Great
Neck, New York, for Defendant-Appellant Euclides Pena-
Castillo.
AMIE N. ELY, Assistant United States Attorney (Katherine
Polk Failla, Assistant United States Attorney, Of Counsel on
the brief), for Preet Bharara, United States Attorney for the
Southern District of New York, New York, New York, for
Appellee United States of America.
Appeal from a judgment of conviction of the United States District Court for the Southern
District of New York (Gardephe, J.) sentencing Defendant-Appellant Euclides Pena-Castillo
principally to 45 months in prison for illegally reentering the United States after having been
deported following a conviction for the commission of an aggravated felony in violation of 8 U.S.C.
§ 1326(a) and (b)(2). UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
AND DECREED that the judgement of the district court be AFFIRMED.
We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
Pena-Castillo argues that the United States Sentencing Guidelines’s prior conviction sentencing
enhancement for illegal reentry cases, U.S.S.G. § 2L1.2(b)(1)(A)(ii), is unreasonable on its face.
As such, he claims that it was an abuse of discretion for the district court to sentence him, in part,
on the basis of this enhancement.
We note, first, that Pena-Castillo does not appear to have fully raised this point in the
district court, an omission that would limit our review to plain error. See United States v. Bonilla,
618 F.3d 102, 111 (2d Cir. 2010). Pena-Castillo’s claim fails under any standard of review,
however, because we have already decided that a district court’s application of U.S.S.G. §
2L1.2(b)(A)(ii) is not by itself grounds for reversal. See United States v. Perez-Frias, ___ F.3d
___, 2011 U.S. App. LEXIS 6616, at *7-*10 (2d Cir. 2011); see also Bonilla, 618 F.3d at 105, 111.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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