United States v. Garcia (Jerez-Vasquez) , 521 F. App'x 22 ( 2013 )

12-2427-cr
United States v. Garcia (Jerez-Vasquez)
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 1st day of April, two thousand thirteen.
5
6 PRESENT: RICHARD C. WESLEY,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 ALISON J. NATHAN,
10 District Judge.*
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 v. 12-2427
18
19 JUAN GARCIA, JOSE ELIAS ALMANZAR,
20 AKA CAPTAIN RAYMOND, AKA WILFREDO SANCHEZ,
21 AKA HECTOR CASADO, AKA LUIS MAURA,
22 MANUEL LNU, JOSE GREGORIO JEREZ-TEJADA,
23 GREGORIO LNU, MERCEDES LNU,
24 RICHARD VLADIMIR BAEZ,
25
26 Defendants,
27
28
29
*
The Honorable Alison J. Nathan, of the United States
District Court for the Southern District of New York, sitting by
designation.
1 GUILLERMO JEREZ-VASQUEZ,
2 AKA GUILLERMO JEREZ-VAZQUEZ,
3
4 Defendant-Appellant.**
5
6
7 FOR APPELLANT: DAVID GORDON, New York, NY.
8
9 FOR APPELLEE: DAVID I. MILLER, Assistant United States
10 Attorney (Katherine Polk Failla,
11 Assistant United States Attorney, on the
12 brief), for Preet Bharara, United States
13 Attorney for the Southern District of New
14 York, New York, NY.
15
16 Appeal from the United States District Court for the
17 Southern District of New York (Forrest, J.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the United States District
21 Court for the Southern District of New York is AFFIRMED.
22 Defendant-Appellant Guillermo Jerez-Vasquez (“Jerez-
23 Vasquez”) appeals from a judgment by the United States
24 District Court for the Southern District of New York
25 (Forrest, J.) sentencing him to 46 months’ imprisonment for
26 his role in a tax-refund check fraud scheme and for illegal
27 re-entry. We assume the parties’ familiarity with the
28 underlying facts, the procedural history, and the issues
29 presented for review.
**
The Clerk of Court is directed to amend the caption to
conform to the listing above.
2
1 We apply a “‘deferential abuse-of-discretion standard’”
2 in reviewing sentences for procedural and substantive
3 unreasonableness. See United States v. Pope, 554 F.3d 240,
4 244 (2d Cir. 2009) (quoting Gall v. United States, 552 U.S.
5 38, 52 (2007)). We will find procedural error when, inter
6 alia, a district court fails to consider the factors
7 specified by 18 U.S.C. § 3553(a) or “fails adequately to
8 explain its chosen sentence” – particularly if the court
9 departs from the Guidelines range. See United States v.
10 Cavera, 550 F.3d 180, 190 (2d Cir. 2008). We will set aside
11 a district court’s sentence for substantive unreasonableness
12 “only in exceptional cases where the trial court’s decision
13 ‘cannot be located within the range of permissible
14 decisions.’” See id. at 189 (quoting United States v. Rigas,
15 490 F.3d 208, 238 (2d Cir. 2007)).
16 Here, we find that the district court did not abuse its
17 discretion in imposing a sentence at the bottom end of the
18 Guidelines range of 46-57 months. Jerez-Vasquez entered the
19 United States illegally to participate in a scheme to submit
20 false tax returns in order to claim tax-refund checks. This
21 scheme netted nearly $400,000 for Jerez-Vasquez and his co-
22 conspirators. The district court emphasized three key
23 factors in reaching its 46-month sentence. First, the court
3
1 expressed its dismay over Jerez-Vasquez’s willingness to re-
2 enter the United States illegally after having been deported
3 in 2006 following receipt of a 24-month sentence for drug
4 trafficking. Second, the court explained its concern that
5 Jerez-Vasquez was in the process of setting up his own tax-
6 refund fraud scheme at the time he was arrested. Third, the
7 district court acknowledged Jerez-Vasquez’s cooperation with
8 the Government following his arrest and his substantial
9 assistance with the investigation.
10 On the basis of these facts, consideration of the
11 Section 3553(a) factors and the Government’s Letter
12 submitted pursuant to U.S.S.G. § 5K1.1, the district court
13 believed that the Guidelines under-represented the
14 seriousness of Jerez-Vasquez’s conduct and that a 92-month
15 sentence would have been warranted but for Jerez-Vasquez’s
16 cooperation with the Government. Accordingly, the court
17 reduced the sentence it would have imposed by half and
18 sentenced Jerez-Vasquez to 46 months’ imprisonment with no
19 period of supervised release (in anticipation of immediate
20 deportation upon release). We find neither procedural nor
21 substantive unreasonableness implicit in this sentence. The
22 district court reasonably explained its decision to impose a
23 46-month sentence based on the weight it assigned to each
4
1 relevant factor and its consideration of the totality of the
2 circumstances. See Cavera, 550 F.3d at 191.
3 In addition, we reject Jerez-Vasquez’s argument that
4 the district court ignored the disparity between his
5 sentence and his co-conspirators’ lesser sentences. See 18
6 U.S.C. § 3553(a)(6). Even assuming that the district court
7 was required to consider potential sentencing disparities
8 amongst co-defendants, but see United States v. Frias, 521
9 F.3d 229, 236 (2d Cir. 2008), the district court’s
10 conclusion does not seem unreasonable. Before leaving the
11 bench, Judge Holwell sentenced two of Jerez-Vasquez’s
12 arguably more culpable co-conspirators to 20 months’ and 36
13 months’ imprisonment, respectively, with terms of supervised
14 release. Although neither co-conspirator cooperated with
15 the Government, neither was also charged with illegal re-
16 entry after being deported for a drug trafficking
17 conviction. Jerez-Vasquez was the only participant in the
18 fraud scheme subject to this count, which carries a maximum
19 penalty of 240 months’ imprisonment. See 8 U.S.C. §
20 1326(b)(2). In sentencing Jerez-Vasquez, Judge Forrest
21 acknowledged the lesser sentences received by his co-
22 conspirators but did not believe that any disparity was
23 unwarranted. We agree.
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