United States v. Hernandez-Perez

13-954-cr
United States v. Hernandez-Perez
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 ASUMMARY ORDER@). A PARTY CITING TO 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 12th day of March, two thousand fifteen.
PRESENT:
GUIDO CALABRESI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
United States of America,
Appellee,
v. No. 13-954-cr
Santos Hernandez-Perez,
Defendant-Appellant.
_____________________________________
FOR APPELLANT: Mehmet K. Okay, The Okay Law Firm,
Batavia, NY.
FOR APPELLEE: Monica J. Richards, Assistant United States
Attorney, for William J. Hochul, Jr., United
States Attorney for the Western District of
New York, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Arcara, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Santos Hernandez-Perez appeals from the sentence of 36 months’
imprisonment imposed by the district court after he pled guilty to one count of transporting an
alien present in the country illegally in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (B)(i). We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
We review a district court’s sentence for reasonableness. United States v. Gilliard, 671
F.3d 255, 258 (2d Cir. 2012). Under this “deferential abuse-of-discretion standard,” we first
consider whether the district court committed procedural error. United States v. Cavera, 550 F.3d
180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). Though Hernandez-Perez
asserts that he does not challenge his sentence as being procedurally unreasonable, he contends
that the district court failed to record the reasons for his above-Guidelines sentence in the judgment
of conviction or articulate why his situation is different from the ordinary situation covered by the
Guidelines calculation. These arguments allege procedural error. See id. at 190 (“A district
court commits procedural error . . . if it fails adequately to explain its chosen sentence, and must
include an explanation for any deviation from the Guidelines range.” (internal quotation marks
omitted)).
In any event, Hernandez-Perez’s assertions are contradicted by the record, as the district
court explained its justifications for the above-Guidelines sentence in the sealed statement of
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reasons section of the judgment and on the record during sentencing. At sentencing, the district
court explained that Hernandez-Perez’s sentence, which was 15 months above the high end of the
uncontested Guidelines range, was justified by the following aggravating factors: (1) this was
Hernandez-Perez’s second felony conviction and his prior conviction was for illegal reentry; (2) he
illegally reentered the United States while on supervised release for illegal reentry and, therefore,
violated his conditions of supervision; (3) he was previously removed from the United States three
times; (4) he “transported 5 illegal aliens within the United States” and concealed them in a “stash
house”; (5) his pattern of illicit activity had escalated from illegal reentry to transporting others
who entered the country illegally; and (6) his conduct demonstrated a flagrant disregard for the
laws of the United States. Joint App’x at 108-10. We therefore conclude that the district court
provided a thorough and sufficient explanation supporting the reasonableness of
Hernandez-Perez’s sentence.
We have considered all of the arguments raised by Hernandez-Perez on appeal and find
them to be without merit. For the reasons stated above, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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