United States v. Cofles-Duque
Opinion of the Court
SUMMARY ORDER
Defendant-Appellant pleaded guilty, in the absence of a plea agreement, to at
Cofles-Duque had requested, inter alia, a downward departure of three levels via application of U.S.S.G. § 2Xl.l(b) because he was convicted of attempted illegal reentry. The district court declined to apply § 2X1.1, and the defendant now appeals that sentence, primarily asserting he is entitled to the three-level departure under § 2X1.1 because he was convicted of “attempt.” U.S.S.G. § 2X1.1. Under U.S.S.G. § 2X1.1, a defendant may receive a three level decrease if the offense was an “attempt ... unless the ... circumstances demonstrate that the defendant was about to complete all such acts [necessary to complete the substantive offense] but for apprehension or interruption by some similar event beyond the defendant’s control.” U.S.S.G. § 2X1.1.
We review both Guidelines and non-Guidelines sentences for reasonableness. United States v. Pereira, 465 F.3d 515, 519 (2d Cir. 2006). Reasonableness review “is akin to review for abuse of discretion,” and thus we “consider whether the sentencing judge exceeded the bounds of allowable discretion!,] committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).
The district court here concluded the defendant “would have entered the United States had [he] not been identified by [the] Customs Officer,” and therefore, because the defendant was “about to complete all the acts necessary for successful completion of the substantive offense,” he was ineligible for a reduction under U.S.S.G. § 2X1.1 We find the district court imposed a reasonable sentence on Cofles-Duque, properly considered the factors set forth in 18 U.S.C. § 3553(a), and made no clearly erroneous finding of fact in determining the defendant’s ineligibility for the departure, or otherwise. See United States v. Fairclough, 439 F.3d 76, 80-81 (2d Cir. 2006); United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005)
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Reference
- Full Case Name
- United States v. Jose Hernando COFLES-DUQUE
- Status
- Published