United States v. Andujar , 403 F. App'x 562 ( 2010 )

09-5175-cr
United States v. Andujar
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY ORDER M UST 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 14 th day of December, two thousand ten.
PRESENT: REENA RAGGI,
DEBRA A. LIVINGSTON,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-5175-cr
MARIANO ALFREDO ANDUJAR, a.k.a. JESUS
LARA, a.k.a. MILTON ANTONIO JIMENEZ,
Defendant-Appellant.
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FOR APPELLANT: Yuanchung Lee, of Counsel, Federal Defenders of New York,
Inc., New York, New York.
FOR APPELLEE: Emily Berger, Seth D. Ducharme, Assistant United States
Attorneys, for Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, New York.
Appeal from the United States District Court for the Eastern District of New York
(Sterling Johnson, Jr., Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on December 4, 2009, is
AFFIRMED.
Defendant Mariano Alfredo Andujar, who pleaded guilty to one count of illegal
reentry after deportation, see 8 U.S.C. § 1326(a), (b)(2), appeals from a judgment sentencing
him principally to 57 months’ imprisonment, the low end of a 57 to 71 month Guidelines
range based on a total offense level of 21 and a Criminal History Category of IV. We review
a sentence for reasonableness, see United States v. Booker, 543 U.S. 220, 261-62 (2005), a
standard akin to review for abuse of discretion, see United States v. Cavera, 550 F.3d 180,
187-88 (2d Cir. 2008) (en banc). “Reasonableness review involves consideration of both the
length of the sentence (substantive reasonableness) and the procedures used to arrive at the
sentence (procedural reasonableness).” United States v. Canova, 485 F.3d 674, 679 (2d Cir.
2007). In undertaking this review, we assume the parties’ familiarity with the facts and
record of prior proceedings, which we reference only as necessary to explain our decision to
affirm.
1. Procedural Reasonableness
Andujar argues that the district court impermissibly accorded a presumption of
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reasonableness to his Guidelines range as evidenced by its failure to explain “why a sentence
within the much lower range set forth in the plea agreement would not have sufficed.” 1
Appellant’s Br. at 18; see also Nelson v. United States, 129 S. Ct. 890, 892 (2009) (“Our
cases do not allow a sentencing court to presume that a sentence within the applicable
Guidelines range is reasonable.”). We are not persuaded. The district court was required to
calculate and consider the correct Guidelines range, see Gall v. United States, 552 U.S. 38,
49 (2007); United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005), and, absent record
evidence to the contrary, of which there is none here, we assume that it understood its
discretion to depart from that range, see United States v. Legros, 529 F.3d 470, 478 (2d Cir.
2008); see also United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010) (noting that district
judge is not required to respond to every argument of counsel). Accordingly, we have no
reason to conclude that the district court applied an impermissible presumption in imposing
the challenged sentence.
In urging otherwise, Andujar argues for the first time on appeal that the Guideline that
applies to his criminal offense, U.S.S.G. § 2L1.2, is due less deference than other Guidelines
because it is an “‘eccentric’ one of ‘highly unusual provenance which, unless carefully
applied, can easily generate unreasonable results.’” Appellant’s Br. at 19 (quoting United
1
The lower 24 to 30 month range was calculated based on an assumption that Andujar
had been deported for an aggravated felony, see U.S.S.G. § 2L1.2(b)(1)(C), when, in fact,
he had been deported for a violent crime conviction, see id. § 2L1.2(b)(1)(A).
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States v. Dorvee, 604 F.3d 84, 98 (2d Cir. 2010), amended by, 616 F.3d 174 (2d Cir. 2010)).
In support, Andujar cites to our decisions holding that “a district court may vary from the
Guidelines range based solely on a policy disagreement with the Guidelines, even where that
[policy] disagreement applies to a wide class of offenders or offenses.” United States v.
Cavera, 550 F.3d at 191; see also United States v. Tutty, 612 F.3d 128, 131 (2d Cir. 2010)
(holding district court committed procedural error “when it concluded that it could not
consider a broad, policy-based challenge to the child pornography Guidelines”). We need
not here discuss in detail the circumstances relating to the promulgation and modification of
U.S.S.G. § 2L1.2. Even assuming that a district court could rely on a policy disagreement
with that Guideline to impose a non-Guidelines sentence, we identify no error, let alone plain
error, in the district court’s decision not to do so here. See United States v. Villafuerte, 502
F.3d 204, 208 (2d Cir. 2007) (reviewing unpreserved sentencing arguments for plain error);
cf. United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006) (holding district court’s refusal
to exercise discretion to reduce sentence to account for absence of “fast track” procedures
reasonable).
2. Substantive Reasonableness
A defendant challenging the substantive reasonableness of a sentence bears a heavy
burden because we afford sentencing courts “very wide latitude to decide the proper degree
of punishment for an individual offender and a particular crime.” United States v. Cavera,
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550 F.3d at 188; see also United States v. Mazza-Alaluf, 621 F.3d 205, 214 (2d Cir. 2010)
(“Because the district court has a particular advantage in assessing the evidence and the
defendant, we accord it considerable deference in assigning weight to relevant sentencing
factors.”), cert. denied, --- S.Ct. ----, 2010 WL 3975752 (Nov. 8, 2010). Indeed, we will set
aside a sentence on substantive grounds “only in exceptional cases where the trial court’s
decision cannot be located within the range of permissible decisions.” United States v.
Cavera, 550 F.3d at 189 (internal quotation marks omitted). Although we do not accord
Guidelines sentences a presumption of reasonableness, “in the overwhelming majority of
cases, [we recognize that] a Guidelines sentence will fall comfortably within the broad range
of sentences that would be reasonable in the particular circumstances.” United States v.
Fernandez, 443 F.3d 19, 27 (2d Cir. 2006); accord Rita v. United States, 551 U.S. 338, 347
(2007) (endorsing appellate court presumption of reasonableness).
Andujar argues that his sentence is unreasonably long for three reasons: (1) U.S.S.G.
§ 2L1.2 establishes a higher offense level than is established for other, allegedly more serious
crimes; (2) similarly-situated defendants in districts that employ “fast track” procedures
regularly receive lower sentences than Andujar; and (3) the circumstances of his particular
situation – principally, the nature of his crime, his alien status, his age, and the length of his
prior sentences – warrant a shorter sentence. Even if we were inclined to agree with
Andujar’s prudential arguments, “[t]he fact that [we] might reasonably have concluded that
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a different sentence was appropriate is insufficient to justify reversal of the district court.”
Gall v. United States, 552 U.S. at 51. Ultimately, we are not persuaded that Andujar’s 57-
month sentence is an exceptional one that cannot be located within the range of permissible
choices available to the district court. See United States v. Cavera, 550 F.3d at 189.
We have considered Andujar’s other arguments on appeal and conclude that they are
without merit. Accordingly, the judgment of the district court entered on December 4, 2009,
is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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