United States v. Carrasco ( 2013 )


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  •          12-1954-cr
    United States v. Carrasco
    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 20th day of March, two thousand and thirteen.
    5
    6       PRESENT: JOHN M. WALKER, JR.,
    7                RICHARD C. WESLEY,
    8                CHRISTOPHER F. DRONEY,
    9                         Circuit Judges,
    10
    11
    12
    13       UNITED STATES OF AMERICA,
    14
    15                                            Appellee,
    16
    17                      v.                                                          12-1954
    18
    19       MANUEL CARRASCO,
    20
    21                                            Defendant-Appellant.
    22
    23
    24       FOR APPELLANT:                James F. Greenwald, Assistant Federal
    25                                     Public Defender, James P. Egan, Research
    26                                     & Writing Attorney, for Lisa A. Peebles,
    27                                     Federal Public Defender for the Northern
    28                                     District of New York, Syracuse, NY.
    29
    30       FOR APPELLEE:                 Carl G. Eurenius, Assistant United States
    31                                     Attorney, Elizabeth S. Riker, Assistant
    32                                     United States Attorney, for Richard S.
    33                                     Hartunian, United States Attorney for the
    34                                     Northern District of New York, Syracuse,
    35                                     NY.
    1        Appeal from the United States District Court for the
    2   Northern District of New York (Suddaby, J.).
    3
    4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    5   AND DECREED that the judgment of the United States District
    6   Court for the Northern District of New York is AFFIRMED.
    7       Defendant-Appellant Manuel Carrasco-Mateo (“Carrasco”)
    8   appeals from a judgment by the United States District Court
    9   for the Northern District of New York (Suddaby, J.),
    10   sentencing him to 56 months’ imprisonment for illegal re-
    11   entry.   We assume the parties’ familiarity with the
    12   underlying facts, the procedural history, and the issues
    13   presented for review.
    14       We apply a “‘deferential abuse-of-discretion standard’”
    15   in reviewing sentences for procedural and substantive
    16   unreasonableness.     See United States v. Pope, 
    554 F.3d 240
    ,
    17   244 (2d Cir. 2009) (quoting Gall v. United States, 
    552 U.S. 18
       38, 52 (2007)).     We will find procedural error when, inter
    19   alia, a district court “rests its sentence on a clearly
    20   erroneous finding of fact” or “fails adequately to explain
    21   its chosen sentence” – particularly if the court departs
    22   from the Guidelines range.     United States v. Cavera, 550
    
    23 F.3d 180
    , 190 (2d Cir. 2008) (en banc).     We will set aside a
    2
    1   district court’s sentence for substantive unreasonableness
    2   “only in exceptional cases where the trial court’s decision
    3   ‘cannot be located within the range of permissible
    4   decisions.’”   Id. at 189 (quoting United States v. Rigas,
    5   
    490 F.3d 208
    , 238 (2d Cir. 2007)).
    6       Here, we find that the district court did not abuse its
    7   discretion in imposing a sentence toward the top end of the
    8   Guidelines range of 46-57 months.    Carrasco argues that the
    9   district court committed procedural error by relying on
    10   unproven elements of a pending state charge.    “A sentencing
    11   court is not limited to considering only evidence of the
    12   convicted offense [and] may take into account other relevant
    13   conduct.”   United States v. Juwa, 
    508 F.3d 694
    , 700 (2d Cir.
    14   2007).   We recognize, however, that “facts relevant to
    15   sentencing must be found by a preponderance of the
    16   evidence,” and that “an indictment or a charge within an
    17   indictment, standing alone and without independent
    18   substantiation, cannot be the basis upon which a criminal
    19   punishment is imposed.”   
    Id. at 701
    .   In imposing its
    20   sentence, the court supported its reasoning that Carrasco
    21   “ha[dn’t] gotten the message” by referencing the pending
    22   action, specifically, “the fact that there’s a conflict
    3
    1   where the police have to be called,” and the “severity” of
    2   an “altercation . . . with a weapon.”
    3       Certain aspects of the conduct leading to the state
    4   arrest were undisputed.   To the extent that the district
    5   court may have considered aspects of the pending charges
    6   that were not proven by a preponderance of the evidence, the
    7   court committed procedural error; however, any error was
    8   harmless.   See Fed. R. Crim. P. 52(a); United States v.
    9   Mason, 
    692 F.3d 178
    , 184 (2d Cir. 2012).       Carrasco’s
    10   sentence fell within the expected range.       The court could
    11   have considered Carrasco’s evasion of police to be
    12   sufficiently serious, or even found the case completely
    13   typical, and still sentenced Carrasco to 56 months.         See
    14   Rita v. United States, 
    551 U.S. 338
    , 356-57 (2007).
    15       Carrasco also challenges his sentence on the grounds of
    16   substantive unreasonableness.       Our review merely “provide[s]
    17   a backstop for those few cases [in which] . . . the sentence
    18   imposed was shockingly high, shockingly low, or otherwise
    19   unsupportable as a matter of law.”       United States v. Rigas,
    20   
    583 F.3d 108
    , 123 (2d Cir. 2009).       While this Court has
    21   declined to adopt the doctrine that a within-Guidelines
    22   sentence is presumptively reasonable, “[w]e recognize that
    4
    1   in the overwhelming majority of cases, a Guidelines sentence
    2   will fall comfortably within the broad range of sentences
    3   that would be reasonable in the particular circumstances.”
    4   United States v. Fernandez, 
    443 F.3d 19
    , 27 (2d Cir. 2006).
    5   In imposing Carrasco’s within-Guidelines sentence, the
    6   district court cited its belief that Carrasco’s conduct
    7   “show[ed] a complete disregard or lack of respect for the
    8   laws of this country.”   Taking the relevant history as a
    9   whole, it cannot be said that the district court abused its
    10   discretion because Carrasco repeatedly entered the country
    11   illegally, was previously convicted of drug-trafficking, and
    12   dangerously attempted to evade the police.     We find that the
    13   district court’s sentence was “located within the range of
    14   permissible decisions” and is thus substantively reasonable.
    15    See Cavera, 550 F.3d at 189 (internal quotation marks
    16   omitted).
    17       Lastly, the potential applicability of the “Fast-Track”
    18   downward departure program was not raised at the district
    19   court by either the Government, defense counsel, or the
    20   court and is therefore waived.    To the extent that Carrasco
    21   raises an ineffective assistance of counsel claim, the
    22   record before us is insufficient to make a determination.
    23   We therefore decline to decide it on appeal.
    5
    1       For the foregoing reasons, the judgment of the district
    2   court is hereby AFFIRMED.
    3
    4                               FOR THE COURT:
    5                               Catherine O’Hagan Wolfe, Clerk
    6
    7
    6
    

Document Info

Docket Number: 12-1954-cr

Judges: Walker, Wesley, Droney

Filed Date: 3/20/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024