United States v. Mendoza ( 2022 )

20-4005-cr
US v. Mendoza
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of March, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 20-4005-cr
v.
RUDY MENDOZA, AKA SEALED DEFENDANT, 8,
AKA RAUL PEREZ, AKA PEDRO MENDOZA,
Defendant-Appellant,
JUAN R. CLIMICO, AKA SEALED DEFENDANT, 1,
AKA MANUEL CLIMICO, AKA JUAN CLINICO, AKA
SMILEY, AKA JUANITO, MARCO CRUZ, AKA MARCO
ANTONIO CRUZ BELLO, AKA MARCOS CRUZ, AKA
SEALED DEFENDANT, 2, AKA JUAN BELLO, AKA
FREDDO GOMEZ, AKA BURRO, AKA MARIGUANO,
FIDEL DEJESUS, AKA SEALED DEFENDANT, 3, AKA
DUENDE, JORGE LEYVA, AKA SEALED DEFENDANT,
4, AKA CUCHA, JESUS MARTINEZ, AKA SEALED
DEFENDANT, 5, AKA GAFAS, AKA TITO, RUBI
MARTINEZ, AKA SEALED DEFENDANT, 6, ARTURO
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MEDINA-LOPEZ, AKA SEALED DEFENDANT, 7, AKA
ARTURO MEDINA, AKA MARLBORO, YASMIN OSUNA,
AKA SEALED DEFENDANT, 9, AKA LA MONA, LA
MONO, MARCOS REYES, AKA SEALED DEFENDANT,
10, AKA MARCO REYES, AKA CUERVO, WILLIAM
ROJAS, AKA SEALED DEFENDANT, 11, AKA WILLY,
LUISBI SANTOS, AKA SEALED DEFENDANT, 12, AKA
CHOREJAS, AKA DUMBO, AKA LULU,
Defendants.
FOR DEFENDANT-APPELLANT: Steven Yurowitz, Newman & Greenberg
LLP, New York, NY.
FOR APPELLEE: Brett M. Kalikow, Danielle R. Sassoon,
Assistant United States Attorneys, for
Damian Williams, United States Attorney,
Southern District of New York, New
York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Colleen McMahon, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the November 13, 2020 judgment of the District Court be
and hereby is AFFIRMED.
In November 2014, Rudy Mendoza (“Mendoza”) was sentenced principally to 300 months’
imprisonment, including 240 months for (1) racketeering conspiracy, in violation of 18 U.S.C.
§ 1962(d); (2) conspiracy to distribute and possess with intent to distribute cocaine and marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(D) and 846; (3) conspiracy to commit
Hobbs Act armed robbery, in violation of 18 U.S.C. § 1951; and (4) conspiracy to distribute
and possess with intent to distribute 5 kilograms or more of cocaine in connection with the Hobbs
Act robbery conspiracy, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846; plus a 60-
month consecutive term for (5) use of a firearm in connection with the Hobbs Act robbery
conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i). 1 Mendoza appealed, and we affirmed the
judgment. United States v. Climico, 754 F. App’x 25, 31 (2d Cir. 2018) (summary order).
Mendoza was also charged with use of a firearm in connection with the racketeering
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conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), but he was acquitted of this count.
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The Supreme Court granted certiorari and vacated the judgment, remanding to us for further
consideration in light of United States v. Davis, 139 S. Ct. 2319 (2019). Mendoza v. United States, 140 S.
Ct. 105 (2019). On remand, we affirmed the judgment for all counts except the § 924(c) count (the
“remaining counts”). We vacated the judgment on the § 924(c) count along with the sentence, and
remanded to the District Court for resentencing. United States v. Climico, 802 F. App’x 599, 600 (2d
Cir. 2020) (summary order); see United States v. Barrett, 937 F.3d 126, 127 (2d Cir. 2019)
(“Davis precludes us from concluding . . . that . . . Hobbs Act robbery conspiracy . . . qualifies as
a § 924(c) crime of violence.”).
On remand to the District Court, the Probation Office prepared a Supplemental Presentence
Report (“PSR”) that, in the absence of the § 924(c) count, included two new enhancements for the
use of a firearm related to the remaining counts. This resulted in an overall increase in Mendoza’s
offense level and a recalculated Guidelines range of 292 to 365 months’ imprisonment. The District
Court concluded that the Supplemental PSR correctly calculated the Guidelines range. App’x 91.
Despite this, the District Court explained that it did not see “any reason why [it] should change the
sentence that [it] gave [Mendoza] on the [remaining] counts, which was . . . 240 months.” Id. 99. The
District Court therefore sentenced Mendoza to a below-Guidelines sentence of 240 months’
imprisonment. Mendoza appeals.
We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
DISCUSSION
We review a claim of procedural error in a district court’s criminal sentence for an abuse of
discretion. United States v. McIntosh, 753 F.3d 388, 393-94 (2d Cir. 2014). “Procedural error occurs in
situations where . . . the district court miscalculates the Guidelines[,] . . . bases its sentence on clearly
erroneous facts[,] or deviates from the Guidelines without explanation.” United States v. Cossey, 632
F.3d 82, 86 (2d Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “Where we identify
procedural error in a sentence, but the record indicates clearly that the district court would have
imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to
vacate the sentence and to remand the case for resentencing.” United States v. Jass, 569 F.3d 47, 68
(2d Cir. 2009) (internal quotation marks omitted).
Mendoza argues on appeal that the District Court erred by applying a firearm enhancement
related to his racketeering conspiracy offense, which he characterizes as “an enhancement wholly
unrelated to the remand,” thus “violat[ing] the mandate rule.” Appellant’s Br. 11. This argument
misapprehends the nature of our remand in this case. As we have previously explained:
When the conviction on one or more charges is overturned on appeal and the case is
remanded for resentencing, the constellation of offenses of conviction has been changed and
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the factual mosaic related to those offenses that the district court must consult to determine
the appropriate sentence is likely altered. For the district court to sentence the defendant
accurately and appropriately, it must confront the offenses of conviction and facts anew. . . .
The “spirit of the mandate” in such circumstances is therefore likely to require de
novo resentencing.
United States v. Quintieri, 306 F.3d 1217, 1227-28 (2d Cir. 2002); accord United States v. Rigas, 583 F.3d
108, 116 (2d Cir. 2009) (“Quintieri supplies two pertinent rules: (1) where a count of a conviction is
overturned—as opposed to an aspect of a sentence—resentencing must be de novo; and (2) de novo
means anew . . . .”) (internal quotation marks omitted). Just so here.
Nor is Mendoza correct that the District Court failed to make the necessary factual findings
to support the challenged firearms enhancement. The District Court adopted the factual findings of
the Supplemental PSR. That PSR contained facts regarding the racketeering conspiracy and the
underlying extortion predicate that provided a sufficient basis for the District Court to conclude, by
a preponderance of the evidence, that the firearms enhancement applied. App’x 100; see Supp. PSR
at 8-11; United States v. Malki, 609 F.3d 503, 511 (2d Cir. 2010) (“[A] district court satisfies its
obligation to make the requisite factual findings when it explicitly adopts the factual findings set
forth in the presentence report.”).
Even if we were to assume, arguendo, that there was error in the District Court’s adoption of
the Supplemental PSR, we would still affirm the judgment, because any such error would have been
harmless. The enhancements included in the Supplemental PSR increased the Guidelines range for the
remaining counts of conviction. The District Court, however, varied from the Guidelines range,
imposing a below-Guidelines sentence, based on the Guidelines range calculated for the remaining
counts in the original PSR. As Judge McMahon explained, she had “problems” with “the notion that
acquitted conduct can be taken into account” and although she “appreciate[d] the lawfulness of”
imposing a higher sentence based on the new enhancements, she was “just not inclined to go there.”
App’x 90, 99; id. at 105-06 (“I didn’t take into account that new guideline. I looked at it, and I said
I’m going to ignore that.”); id. at 107 (“I considered [the Guidelines], and I considered them not to
be what should control in this case.”). In other words, the District Court resentenced Mendoza
despite the new firearms enhancements, rather than in accordance with them. App’x 98-99 (“[T]he
question for me is . . . has anybody shown me any reason why I should change the sentence that I gave
you on the other four counts, which was 20 years, 240 months? And the answer to that question is
no.”) (emphasis added). Any error in the calculation of the Guidelines range would therefore have
been harmless. Ulbricht, 858 F.3d at 124.
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CONCLUSION
We have reviewed all of the arguments raised by Mendoza on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the November 13, 2020 judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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