United States v. Vazquez

17-3670-cr
United States v. Vazquez
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, at 40 Foley Square, in the City of New York, on
the 12th day of September, two thousand nineteen.
Present: ROBERT A. KATZMANN,
Chief Judge,
JOHN M. WALKER, JR.,
MICHAEL H. PARK,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 17-3670-cr
JUSTIN VAZQUEZ,
Defendant-Appellant.
____________________________________________
For Defendant-Appellant: Mehmet K. Okay, The Okay Law Firm, Batavia, New
York.
For Appellee: Katelyn M. Hartford, Assistant United States Attorney, for
James P. Kennedy, Jr., United States Attorney for the
Western District of New York, Rochester, New York.
Appeal from a judgment of the United States District Court for the Western District of
New York (Geraci, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Justin Vazquez appeals from a judgment of the United States District Court for the
Western District of New York (Geraci, J.) entered October 24, 2017, following a jury trial,
sentencing him principally to 10 months’ imprisonment, to run consecutively with an
undischarged sentence of 72 months’ imprisonment on an unrelated conviction. On appeal,
Vazquez contends that this sentence is procedurally unreasonable because the district court did
not consider all the factors it was required to consider in deciding whether to impose a
consecutive or concurrent sentence. He also argues that the sentence is substantively
unreasonable. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
A district court’s decision to impose a sentence concurrently or consecutively to an
undischarged term of imprisonment is governed by 18 U.S.C. § 3584, which provides that “if a
term of imprisonment is imposed on a defendant who is already subject to an undischarged term
of imprisonment, the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a).1 This
section sets a “default rule” that “[m]ultiple terms of imprisonment imposed at different times
run consecutively unless the court orders that the terms are to run concurrently.” United States v.
McIntosh, 753 F.3d 388, 395 (2d Cir. 2014) (per curiam). “The court, in determining whether the
terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each
offense for which a term of imprisonment is being imposed, the factors set forth in section
3553(a).” 18 U.S.C. § 3584(b). The Sentencing Guidelines also give district courts discretion to
impose a sentence concurrently or consecutively to an undischarged term of imprisonment. See
U.S.S.G. § 5G1.3(d). The commentary outlines factors a district court “should” consider in
1
Unless otherwise indicated, case quotations omit all internal citations, alterations, and
quotation marks.
2
determining whether a sentence “to run concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment . . . achieve[s] a reasonable incremental punishment
for the instant offense.” U.S.S.G. § 5G1.3, cmt. n.4(A).
This Court reviews a district court’s sentencing decisions for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007); United States v. Watkins, 667 F.3d 254, 260 (2d Cir.
2012).1 “Reasonableness review is similar to review for abuse of discretion and may require
reversal when the district court’s decision cannot be located within the range of permissible
decisions or is based on a legal error or clearly erroneous factual finding.” United States v.
Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). “Procedural reasonableness concerns the
procedures a district court employs in arriving at a sentence,” while “[s]ubstantive
reasonableness involves the length of the sentence imposed in light of the factors enumerated
under 18 U.S.C. § 3553(a).” Id.
First, Vazquez argues the sentence is procedurally unreasonable because the district court
did not make individualized findings for each factor it was required to consider.2 As an initial
matter, as Vazquez concedes, the district court was not required to consider the factors listed in
the Sentencing Guidelines application note because that note is “advisory and not binding.”
United States v. Margiotti, 85 F.3d 100, 105 (2d Cir. 1996) (per curiam). By contrast, the district
court was required to consider the factors outlined in § 3553(a), see 18 U.S.C. § 3584(b), but
“[n]othing in the language of the guideline or its Commentary requires district courts to make
specific findings with respect to any or all of the factors listed in the Commentary or § 3553(a).”
United States v. Velasquez, 136 F.3d 921, 924 (2d Cir. 1998) (per curiam); see also United States
v. Pereira, 465 F.3d 515, 523 (2d Cir. 2006) (“[A] sentencing judge’s decision not to discuss
2
The government argues that Vazquez’s objection is subject to plain error review
because he did not object below to the district court’s alleged failure to consider all the statutory
factors. We need not reach that issue since we would conclude that the district court’s sentence is
procedurally reasonable regardless of the standard of review.
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explicitly the sentencing factors or not to review them in the exact language of the statute does
not, without more, overcome the presumption that she took them all properly into account.”).
Rather, this Court “presume[s] that a sentencing judge has faithfully discharged her duty to
consider the statutory factors.” United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008).
Nothing in the record suggests that we should not apply this presumption here. See United States
v. Malki, 609 F.3d 503, 512 (2d Cir. 2010) (“[I]n the absence of record evidence suggesting
otherwise,” “[w]e presume . . . that a sentencing judge has faithfully discharged his duty to
consider the statutory factors enumerated in § 3553(a).”).
In fact, the record supports the conclusion that the district court considered the § 3553(a)
factors, which include “the nature and circumstances of the offense and the history and
characteristics of the defendant,” the need for the sentence imposed to provide “just punishment”
and to “afford adequate deterrence to criminal conduct,” and the guidelines range. 18 U.S.C.
§ 3553. The district court was “mindful of the jury trial that it presided over in which the
defendant was in possession of a firearm after being convicted of a felony and holding his
mother and siblings at gunpoint for quite a period of time.” App. 299. The court noted that it had
sentenced Vazquez to 72 months’ imprisonment on that conviction. The district court considered
“the nature and seriousness of the [instant] offense,” which, in its view, “show[ed] total
disrespect to the court proceedings.” App. 298. The district court stated that Vazquez has “quite a
criminal history here, primarily involved with harassments and criminal contempt,” App. 299,
while also recognizing that Vazquez “has been diagnosed with some mental health issues” and
“had quite a troubled upbringing.” App. 297-98. Finally, the district court described its sentence
as one that would “deter the defendant and others from engaging in this type of activity in the
future, but . . . not greater than necessary to accomplish all those purposes.” App. 299. These
remarks reflect consideration of the Section 3553(a) factors.
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Second, Vazquez appears to raise a substantive unreasonableness challenge, arguing that
a concurrent, or partially concurrent, sentence would have been “more consistent” with the
sentencing objectives set forth in 18 U.S.C. § 3553(a)(2). This Court’s “review of a sentence for
substantive reasonableness is particularly deferential.” United States v. Broxmeyer, 699 F.3d 265,
289 (2d Cir. 2012). Vazquez’s sentence is below the Guidelines range of 12 to 18 months’
imprisonment that, by “default,” runs consecutive to any term of imprisonment imposed at a
different time. McIntosh, 753 F.3d at 395. While there is no presumption that a within-
Guidelines sentence is substantively reasonable, a sentence is substantively unreasonable “only
in exceptional cases where the trial court’s decision cannot be located within the range of
permissible decisions,” and “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. Wagner-Dano, 679 F.3d 83, 95 (2d Cir. 2012). Moreover, “it is
difficult to find that a below-Guidelines sentence is substantively unreasonable.” United States v.
Rivernider, 828 F.3d 91, 111 (2d Cir. 2016). The district court’s sentence is well within the range
of permissible decisions. The nature and circumstances of the offense, as well as Vazquez’s
criminal history, supported the district court’s decision to impose a below-Guidelines sentence
consecutive to Vazquez’s undischarged sentence.
We have considered all of Vazquez’s remaining contentions and have found in them no
basis for reversal. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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