United States v. Kasparek

13-2455
United States v. Kasparek
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 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
19th day of September, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
GERARD E. LYNCH,
Circuit Judges.
____________________________________________
ROBERT KASPAREK,
Petitioner,
v. No. 13-2455
UNITED STATES PAROLE COMMISSION,
Respondent.
____________________________________________
For Petitioner: MOLLY K. CORBETT (Paul J. Evangelista, Assistant
Federal Public Defender, on the brief), for Lisa A.
Peebles, Federal Public Defender for the Northern
District of New York, Albany, NY.
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For Respondent: SHARON GERVASONI, Assistant General Counsel,
for J. Patricia Smoot, Acting General Counsel,
United States Parole Commission, Washington, DC.
Petition for review of a transfer-treaty determination by the United States Parole
Commission.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Robert Kasparek, a transfer treaty prisoner imprisoned within this Circuit, petitions for
review of the United States Parole Commission’s determination of his release date pursuant to 18
U.S.C. § 4106A. We assume the parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to deny the petition.
Kasparek was convicted of second-degree murder by a Canadian court and sentenced to
life imprisonment, as is mandatory under Canadian law, see Canada Criminal Code, R.S.C. 1985,
c. C-46, § 235, with a possibility of parole after fourteen years. The U.S. Parole Commission is
authorized “to determine a release date for an offender transferred to the United States as though
the offender were convicted in a United States district court of a similar offense.” Austin v. U.S.
Parole Comm’n, 448 F.3d 197, 200 (2d Cir. 2006) (citing 18 U.S.C. § 4106A(b)(1)(A)). Upon
Kasparek’s transfer to the United States, the Parole Commission determined that the analogous
offense under United States law is also second-degree murder. Applying the Guidelines in force
at the time of Kasparek’s conviction, the Commission further determined that a base offense
level of 33 for his offense should be increased by two levels because the offense involved a
vulnerable victim, but decreased by two levels because the defendant accepted responsibility for
the offense. Based on a total offense level of 33 and a criminal history category of III, the
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Commission calculated that the Guidelines range applicable to Kasparek’s offense of conviction
is 168–210 months’ imprisonment. The Commission, however, determined that an upward
departure from this range was appropriate in light of Kasparek’s criminal history and extreme
conduct, see U.S.S.G. §§ 4A1.3 & 5K2.8, and therefore set Kasparek’s release date to coincide
with 320 months’ total incarceration.
Kasparek contends that the Commission’s determination of his release date violated his
Sixth Amendment right to jury trial as elaborated by Alleyne v. United States, 133 S. Ct. 2151(2013), and is both procedurally and substantively unreasonable.
Before turning to the reasonableness of Kasparek’s sentence, we reject his Sixth
Amendment claim as foreclosed by the law of our Circuit. As we have previously held,
“[b]ecause [petitioner’s] punishment derives from his violation of [foreign] law, he does not
enjoy the Sixth Amendment right to trial by jury . . . .” Austin, 448 F.3d at 201. We note,
moreover, that the factfinding to which Kasparek objects related only to the Commission’s
“factfinding used to guide judicial discretion,” Alleyne, 133 S. Ct. at 2161 n.2, not to the
determination of the applicable statutory maximum or minimum term, which was at issue in
Alleyne. Alleyne, therefore, is wholly inapposite to this case.
As to reasonableness, we review the Parole Commission’s determination of Kasparek’s
release date “‘as though the determination appealed had been a sentence imposed by a United
States district court.’” Austin, 448 F.3d at 200 (quoting 18 U.S.C. § 4106A(b)(2)(B)).
Accordingly, we review the Commission’s release-date determination for reasonableness, which
includes a procedural and substantive component. See United States v. Cavera, 550 F.3d 180,
189 (2d Cir. 2008) (en banc).
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“Procedural error occurs in situations where, for instance, the district court miscalculates
the Guidelines; treats them as mandatory; does not adequately explain the sentence imposed;
does not properly consider the [18 U.S.C.] § 3553(a) factors; 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) (per curiam). By contrast, we are especially deferential to the
substantive reasonableness of a sentence, and will “set aside a . . . substantive determination”
about the appropriate sentence “only in exceptional cases where the . . . decision ‘cannot be
located within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting United
States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
Kasparek groups a number of disparate arguments under the umbrella of a procedural
challenge to the Commission’s determination of his release date. None was raised before the
Parole Commission, and so we review his claims for plain error. See United States v.
Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Under that standard of review, we will not
correct a putative error unless, among other considerations, the error is “clear or obvious, rather
than subject to reasonable dispute.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal
quotation marks omitted).
Kasparek principally argues that the Commission erred in applying a two-level
vulnerable-victim enhancement to his base offense level pursuant to U.S.S.G. § 3A1.1 because
the Commission lacked a sufficient and particularized factual basis to conclude the victim was
vulnerable.” We find no plain error in the Commission’s determination that a two-level increase
to the base offense level was warranted. As the Commission explained, the offense of conviction
involved the extremely violent murder of a seventy-year-old woman. A Probation Officer’s
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report to the Commission similarly noted the Canadian sentencing judge’s description of the
offense: The crime was a “brutal and callous” offense against “a defenceless 70 year old woman
in the sanctity of her home in the middle of the night.” J.A. 56. The Canadian authorities also
noted the conclusion of a pathologist that “having received [nineteen] blows, [the victim] tried to
escape and was pursued by the accused who then stabbed her in the back and the abdomen.” J.A.
16. “[A]lthough there is skepticism of generalized assumptions about a victim’s vulnerability
based upon that person’s membership in a class, many cases have upheld vulnerable victim
enhancements based on group generalizations.” United States v. McCall, 174 F.3d 47, 51 (2d Cir.
1998). Thus, it is at least subject to reasonable dispute whether a seventy-year-old woman living
alone is particularly vulnerable to the violent offense of which the petitioner was convicted. We
accordingly conclude that the Commission did not plainly err in concluding that the petitioner
committed this violent offense against a vulnerable victim.
Kasparek also argues that the Commission’s release-date determination extended the
duration of his sentence beyond the term that he would have served in Canada. His briefing
equivocates in styling this claim as procedural error; as a violation of his Sixth Amendment
rights; and as a violation of both the applicable treaty, Treaty Between the United States of
America and Canada on the Execution of Penal Sentences, U.S.-Can., art. IV(3), Mar. 2, 1977,
30 U.S.T. 6263, and statutory law, 18 U.S.C. § 4106A(b)(1)(C). Contrary to the discordant
characterizations of the Canadian sentence contained in Kasparek’s briefing, we note that he was
sentenced to life imprisonment with a possibility of parole after fourteen years. And, indeed, as
his continued incarceration in Canadian prison long after he became parole-eligible
demonstrates, Kasparek did not become entitled to release the moment fourteen years had run on
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his life sentence. His sentence was, instead, avowedly a sentence to “life” imprisonment with the
possibility of parole. We therefore discern no breach of the treaty, or the transfer statute, in the
Commission’s determination that Kasparek should be released after 320 months’ total
incarceration.
Finally, Kasparek argues for the first time in his reply brief that the Commission’s
determination was substantively unreasonable. “We will not consider an argument raised for the
first time in a reply brief.” United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003). Even if we
were to assess the substantive reasonableness of a 320-month term of incarceration, we would
find that the term fits comfortably within the range of permissible decisions for so violent a
crime.
We have considered Kasparek’s remaining arguments and find them to be without merit.
For the reasons stated herein, the petition for review is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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