United States v. Rodriguez , 715 F.3d 451 ( 2013 )


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  • 12-1214-cr
    United States v. Rodriguez
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    August Term, 2012
    (Submitted: April 25, 2013       Decided: May 15, 2013)
    Docket No. 12-1214-cr
    UNITED STATES OF AMERICA,
    Appellee,
    — v. —
    EDUARDO RODRIGUEZ, also known as EDUARDO RODRIGUEZ-NUNEZ, also known as
    EDWARDO RODRIGUEZ, also known as RAFAEL FLORES,
    Defendant-Appellant.
    B e f o r e:
    WINTER, CALABRESI, and LYNCH, Circuit Judges.
    __________________
    Defendant-appellant Eduardo Rodriguez appeals from a judgment of conviction
    entered on March 23, 2012, following his guilty plea in the United States District Court
    for the Southern District of New York (Leonard B. Sand, Judge). Rodriguez pled guilty
    to illegally reentering the United States following a conviction for an aggravated felony in
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    violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and was sentenced to 57 months’
    imprisonment, to run consecutively to an undischarged term of imprisonment for
    narcotics convictions in the state of Virginia. On appeal, Rodriguez challenges his
    sentence as substantively unreasonable. Because we do not find the sentence
    unreasonable, we affirm the district court’s judgment.
    AFFIRMED.
    Judge LYNCH concurs in the opinion of the Court, and files a concurring opinion.
    JULIA PAMELA HEIT, New York, New York, for defendant-appellant.
    ALEXANDER J. WILSON, Assistant United States Attorney (Andrew Fish, on
    the brief), for Preet Bharara, United States Attorney for the Southern
    District of New York, New York, New York, for appellee.
    PER CURIAM:
    Defendant-appellant Eduardo Rodriguez appeals from a judgment of conviction
    entered on March 23, 2012, in the United States District Court for the Southern District of
    New York (Leonard B. Sand, Judge) on his guilty plea to illegally reentering the United
    States after deportation following a conviction for an aggravated felony in violation of 8
    U.S.C. §§ 1326(a) and 1326(b)(2). The district court imposed a term of 57 months’
    imprisonment, to run consecutively to an undischarged term of imprisonment that
    Rodriguez was serving in connection with narcotics convictions in the state of Virginia.
    In this appeal, Rodriguez challenges his sentence as substantively unreasonable.
    2
    “We review the reasonableness of a district court’s sentence under a deferential
    abuse of discretion standard . . . .” United States v. Hernandez, 
    604 F.3d 48
    , 52 (2d Cir.
    2010). This review “encompasses two components: procedural review and substantive
    review.” United States v. Cavera, 
    550 F.3d 180
    , 189 (2d Cir. 2008) (en banc). Where the
    district court’s sentencing decision is procedurally sound, we then consider whether the
    sentence was substantively reasonable. See Gall v. United States, 
    552 U.S. 38
    , 51 (2007).
    “[W]hen conducting substantive review, we take into account the totality of the
    circumstances, giving due deference to the sentencing judge’s exercise of discretion, and
    bearing in mind the institutional advantages of district courts.” Cavera, 550 F.3d at 190.
    Only in exceptional cases, “where the trial court’s decision cannot be located within the
    range of permissible decisions,” id. at 189 (internal quotation marks omitted), will we set
    aside a district court’s substantive determination. “In the overwhelming majority of
    cases, a Guidelines sentence will fall comfortably within the broad range of sentences that
    would be reasonable in the particular circumstances.” United States v. Perez-Frias, 
    636 F.3d 39
    , 43 (2d Cir. 2011) (internal quotation marks and bracket omitted).
    Rodriguez argues that the district court’s refusal to impose a concurrent or partially
    concurrent sentence renders his 57-month Guidelines sentence substantively
    unreasonable. We disagree. The Guidelines provide that, when a defendant is already
    serving an undischarged term of imprisonment, “the sentence for the instant offense may
    be imposed to run concurrently, partially concurrently, or consecutively to the prior
    undischarged term of imprisonment to achieve a reasonable punishment for the instant
    3
    offense.” U.S.S.G. § 5G1.3(c). That guideline “generally vests broad discretion in the
    sentencing court,” United States v. Maria, 
    186 F.3d 65
    , 71 (2d Cir. 1999), and instructs
    district courts to consider a range of factors in deciding whether a sentence should run
    concurrently or consecutively to an existing sentence, including the 18 U.S.C. § 3553(a)
    factors, and “any other circumstance relevant to the determination of an appropriate
    sentence,” U.S.S.G. § 5G1.3 app. n.3. See United States v. McCormick, 
    58 F.3d 874
    , 878
    (2d Cir. 1995) (noting that the court should “consider the basic principle that a
    consecutive sentence should be imposed to the extent that it will result in a reasonable
    incremental penalty”) (internal quotation marks omitted). “A district court’s sentencing
    decisions under § 5G1.3(c) will not be overturned absent an abuse of discretion.” United
    States v. Matera, 
    489 F.3d 115
    , 124 (2d Cir. 2007) (brackets and internal quotation marks
    omitted).
    The district court imposed Rodriguez’s 57-month sentence to run consecutively to
    his existing sentence after considering Rodriguez’s history, characteristics, and the goals
    of sentencing, most notably, deterrence. These are permissible factors for a district court
    to consider under § 5G1.3(c), which permits the consideration of the factors listed under
    18 U.S.C. § 3553(a), including “the history and characteristics of the defendant” and “the
    need . . . to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a). We
    therefore conclude that the district court acted well within its discretion in imposing the
    sentence to run consecutively to the state sentence.
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    We have considered all of Rodriguez’s remaining arguments and find them to be
    without merit.
    For the foregoing reasons, the judgment of the district court is AFFIRMED.
    5
    GERARD E. LYNCH, Circuit Judge, concurring:
    I fully join the per curiam opinion because I agree that the sentence imposed in this
    case is not substantively unreasonable. I write separately, however, to call attention to a
    framework available to district court judges deciding whether to impose a term of
    imprisonment that runs consecutively, concurrently, or partially concurrently to an
    undischarged state sentence, which does not appear to have been considered either by
    defense counsel or by the district court, and which was not cited by appellant to this
    Court. It is my view that in exercising the discretion provided by U.S.S.G. § 5G1.3(c),
    district judges might well want to consider the sentence that they would impose if the
    crime of conviction and the crime underlying the undischarged term of imprisonment had
    both been prosecuted simultaneously in federal court.
    The problem of concurrent or consecutive sentences is a vexing one in any
    guideline system that attempts to recommended sentences for various offenses that are
    tied primarily to the seriousness of the offense conduct. As the United States Sentencing
    Guidelines have recognized from the outset, “[t]he difficulty is that when a defendant
    engages in conduct that causes several harms, each additional harm, even if it increases
    the extent to which punishment is warranted, does not necessarily warrant a proportionate
    increase in punishment.” U.S.S.G. ch.1, pt. A, introductory cmt. 4(e). The Commission
    gave an example: “A defendant who assaults others during a fight . . . may warrant more
    punishment if he injures ten people than if he injures one, but his conduct does not
    necessarily warrant ten times the punishment.” Id. The Guidelines thus provide an
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    admittedly imperfect set of rules, commonly referred to as the “grouping rules,” for
    addressing the problem of providing “an appropriate degree of aggravation of punishment
    for multiple offenses that are the subjects of separate counts.” Id.; see U.S.S.G. ch. 3, pt.
    D.
    The problem of whether a federal sentence for an additional crime should run
    concurrently, consecutively, or partially consecutively to an existing undischarged
    sentence is analogous. Here, too, the problem is whether the punishment for two distinct
    offenses should be the total of the punishments that might be appropriate for the two
    offenses considered separately, or something less. In many cases, by virtue of the mere
    fact that one crime was prosecuted in the state system and the other federally, or because
    one crime was only detected after the earlier one was fully prosecuted, the grouping rules
    do not apply as they would had both crimes been prosecuted simultaneously in the federal
    system. For a defendant such as this one, applying the grouping rules to determine what
    incremental punishment those rules would have provided if the defendant had been
    prosecuted simultaneously in federal court for both offenses could provide useful
    information about the degree to which it is appropriate to impose a sentence that is only
    partially consecutive.
    In this case, Rodriguez had already been prosecuted for narcotics offenses in the
    state courts of Virginia, and received an effective sentence of nine years (108 months).1
    1
    Rodriguez was actually sentenced to 31 years of imprisonment, 22 of which were
    suspended. The parolable nature of sentences in many states is a complicating factor for any
    2
    In deciding to impose a fully consecutive sentence, the district court imposed an
    additional 57-month sentence, such that Rodriguez will presumably serve a total of 165
    months. Given the sparsity of the information available in this record, it is impossible to
    determine precisely how Rodriguez would have fared had both offenses been charged in
    the same federal indictment. We do not know enough about the nature of the state
    narcotics offenses for which he was serving a sentence to determine the guideline
    calculation for that offense, and such a calculation is an essential step in applying the
    multiple-count analysis under the federal Guidelines. But we can have some confidence
    that if Rodriguez had been prosecuted simultaneously in federal court for his immigration
    violation and for a narcotics offense that would yield a guideline recommendation of 108
    months, his total recommended sentence would probably have been significantly lower
    than 165 months.
    We know this because the Sentencing Commission’s approach, as discussed
    above, was designed to yield something less than fully consecutive sentences for multiple
    counts prosecuted together. See U.S.S.G. ch. 1, pt. A, introductory cmt. 4(e). A
    rudimentary version of the mechanics by which that approach was implemented,
    oversimplifying the analysis by disregarding questions of criminal history category and
    reductions of final offense levels for acceptance of responsibility, confirms that
    conclusion. Under U.S.S.G. § 3D1.1(a), the district court would be instructed to (1)
    court attempting to determine the practical effect of imposing a consecutive federal sentence.
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    determine how the two offenses would be grouped, (2) determine the offense levels
    applicable to each group, and (3) determine the combined offense level for all the crimes.
    At step (1), under U.S.S.G. § 3D1.2, the drug and immigration offenses would not be
    grouped, because they do not involve “substantially the same harm.” U.S.S.G. § 3D1.2.
    At step (2), let us assume a defendant whose narcotics offense equated to an offense level
    of 29, which, at criminal history category I – not Rodriguez’s actual category – produces
    a recommended guideline range of 87 to 108 months, and whose immigration offense
    level was 24 – Rodriguez’s actual immigration offense level – which, at criminal history
    category I, would produce a guideline range of 51 to 63 months.
    At step (3), the offense level for the more serious narcotics offense would count as
    one Unit, and because the immigration offense is five levels less serious than the
    narcotics offense, it would count as ½ Unit. See U.S.S.G. § 3D1.4(a), (b). With a total of
    1½ Units, the court would be instructed to increase the base offense level for the more
    serious offense by one level, id. § 3D1.4 (table), raising the defendant’s aggregate offense
    level to 30. If we continue with our simplifying assumption of criminal history category
    I, the Guideline recommendation would be 97 to 121 months, not the range of 138 to 165
    months that would result from simply adding the ranges for the two offenses and running
    the sentences consecutively. Assuming a top-of-the-range sentence, the defendant’s
    sentence would increase from 108 to 121 months as a result of the immigration
    conviction, not from 108 to 165. If this kind of analysis were applied in a case in which
    108-month sentence was already being served, it would suggest that only 13 months, and
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    not the full 57 months of the immigration sentence, should be required to run
    consecutively.
    I do not for a moment suggest that this rather crude calculation yields an
    appropriate sentence for Rodriguez, still less that the district court’s decision to impose a
    fully consecutive sentence was unreasonable. First, as noted repeatedly, the calculation I
    have made is a crudely oversimplified approximation, based on insufficient information
    and some oversimplified assumptions, that does not reflect how the Guidelines would
    apply to Rodriguez’s actual crimes. Second, even in making a precise calculation with
    full information, it might well be appropriate not to look to how the actual narcotics
    offense would be treated under federal law, but to respect the policies of the state
    sentencing system, which might well impose higher or lower sentences for narcotics
    offenses than the federal guidelines, and thus to utilize some approximation of a
    guidelines level for the narcotics offense rather than the actual federal level. Third, the
    Sentencing Commission itself recognizes that, even within the sphere in which they were
    designed to operate, its rules for dealing with multiple-count convictions are hardly
    perfect and “may produce occasional anomalies.” U.S.S.G. ch. 1, pt. A, introductory cmt.
    4(e). Like other mechanical rules in the Guidelines, they are suggestive rather than
    definitive, and the illusion of mathematical clarity that they provide may in any particular
    case be more seductive than enlightening. Fourth, the multiple-count guidelines were not
    designed to apply to the consecutive versus concurrent decision in the precise situation of
    imposing an additional sentence on a defendant already serving an uncompleted term in a
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    state prison. That is a situation analogous, but not perfectly identical, to the multiple-
    count scenario. Accordingly, the Commission did not instruct that its multiple-count
    rules should be applied in that situation, but instead left the question of concurrent versus
    consecutive sentences to the wise discretion of the district court. Fifth, like every
    recommendation in the Guidelines manual, even in their intended zone of application, the
    multiple-count rules are only advisory. And finally, it cannot have been an abuse of
    discretion for the district court not to have made the kinds of calculations I have
    suggested here, as the defendant did not raise any such argument either in the district
    court or on appeal.
    For these reasons, I am fully in accord with the conclusion and reasoning of the per
    curiam opinion, which correctly affirms the sentence imposed as substantively
    reasonable, and within the sound discretion of the district court. I merely suggest that in
    cases of this sort, prosecutors, defense attorneys, and district courts may find it useful to
    consider conducting the type of multiple-count analysis that I have outlined here, which
    may provide a useful additional piece of information in considering an appropriate
    sentence. After all, Congress has instructed that one of the factors to be considered in
    determining an appropriate sentence is “the need to avoid unwarranted sentence
    disparities among defendants with similar records who have been found guilty of similar
    conduct.” 18 U.S.C. § 3553(a)(6). There may be sound reasons in any particular case for
    imposing a sentence that is fully consecutive to an undischarged sentence, even where the
    multiple-count rules would have recommended a lesser sentence if the offenses had been
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    prosecuted simultaneously. With an accurate view of the multiple-count analysis before
    it, however, a district court might well conclude, in an appropriate case, that the accident
    of when and where a defendant has been prosecuted for his various crimes might create
    an unwarranted disparity if a fully consecutive sentence is imposed.
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