United States v. Kyranious

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be affirmed.

Norberto Mendez appeals from the order of the United States District Court for the Eastern District of New York sentencing him to a term of imprisonment of 41 months. The facts relevant to Mendez’s appeal are set forth in a prior summary order, United States v. Kyranious, No. 98-1414 (2d Cir. Nov. 3, 1999), in which we remanded for supplementation of the record. Specifically, upon concluding that the district court erred in calculating Mendez’s guideline range to be 41 to 51 months rather than 37 to 46 months, we asked the district court to say whether, based on the correct guideline range, any different sentence would have been imposed on Mendez. Id. at *2.

We have now received a transcript of the hearing conducted before the district court following that limited remand. The district judge determined that, notwithstanding a different guideline range — 37 to 46 months — he would still sentence Mendez to a term of 41 months in prison. Given this determination, and in light of our prior analysis we conclude that the error in the calculation of Mendez’s guideline range did not “affect[ ] defendant’s-substantial rights resulting in a manifest injustice,” for Mendez would have received the same sentence in the absence of error. United States v. Keppler, 2 F.3d 21, 24 (2d Cir. 1993) (quoting United States v. Arigbodi 924 F.2d 462, 464 (2d Cir. 1991) (per curiam) (internal quotation marks omitted).

For the reasons set forth above, the sentence imposed in the judgment is hereby AFFIRMED.