16‐1239‐cr(L) United States v. 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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, 40 Foley Square, in the City of New York, on the 21st day of June, two thousand seventeen.

PRESENT: RALPH K. WINTER, GUIDO CALABRESI, DENNY CHIN, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 16‐1239‐cr(L) 16‐1406‐cr(CON) JOSE JUAN RODRIGUEZ, Defendant,

JOSE RAMIREZ PEREZ, Defendant‐Appellant.

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FOR DEFENDANT‐APPELLANT: DONALD D. DUBOULAY, Law Office of Donald D. duBoulay, New York, New York.

FOR APPELLEE: PAUL G. SCOTTI, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Bridget M. Rohde, Acting United States Attorney for the Eastern District of New York, Brooklyn, New York.

Consolidated appeals from the United States District Court for the Eastern

District of New York (Johnson, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

Defendant‐appellant Jose Ramirez Perez appeals from judgments entered

April 19, 2016 sentencing him principally to (1) 37 monthsʹ imprisonment in case

number 94‐CR‐950 for conspiracy to sell counterfeit U.S. currency, and (2) 18 monthsʹ

imprisonment, concurrently with the first sentence, for violating the terms of his

supervised release imposed in an earlier case, case number 90‐CR‐989. On appeal, he

challenges the procedural reasonableness of both sentences. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

In August 1994, while on supervised release following a drug conviction

in 1991, Perez sold $13,500 in counterfeit currency to a confidential informant and was

arrested by federal law enforcement. He admitted in a post‐arrest statement that he had

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previously purchased $75,000 in counterfeit currency from his co‐defendant. His

cooperation with the government led to the arrest of his co‐defendant for counterfeiting.

Perez was indicted for counterfeiting in September 1994 and charged with

violating his supervised release through the same conduct. He pled guilty to the

counterfeiting conspiracy, absconded before sentencing, and evaded law enforcement

as a fugitive for nearly 20 years. In 2014, he was arrested by state authorities on

unrelated felony drug charges. He pled guilty to these charges, was sentenced to one

year in prison, and, upon his release, was transferred to federal custody. He then pled

guilty, based on his counterfeiting conduct, to violating the terms of supervisory release

imposed on him in connection with his drug conviction in 1991.

Probation prepared a presentence report recommending, with respect to

the conspiracy conviction, (1) a total offense level of 17, comprising a base offense level

of 9, a six‐point enhancement for conduct involving over $40,000 (i.e., $75,000) in

counterfeit currency, and a two‐point enhancement for obstruction of justice as a

fugitive; (2) criminal history category IV; and (3) a Guidelines range of 37 to 46 months.

Perez did not submit objections to the $75,000 finding or Guidelines calculation.

At sentencing, the court asked Perez if he agreed with the recommended

Guidelines range, and he responded that he did. Perez, again, did not raise any

objections to the proposed Guidelines calculation or the findings in the presentence

report. After hearing argument from both parties, the court concluded:

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I have taken in consideration the allocution of the defendant, the submissions, arguments by the counsel. Also taken in consideration that the defendant has been absent for 20‐some years, but I think a sentence thatʹs sufficient but not greater than necessary under the ʹ94 indictment, ʹ94, ʹ95, Iʹm sentencing the defendant to the custody of the Attorney General for a period of 37 months, 3 years, supervised release, and a $100 special assessment.

App. 35. The court also sentenced Perez to a concurrent term of 18 months for violating

his supervised release. Judgments for both sentences were filed shortly thereafter. The

court completed a written statement of reasons indicating its adoption of the

presentence report and determination of the Guidelines range.

Perez argues on appeal that his sentence for the substantive offense was

procedurally unreasonable because the court did not calculate the Guidelines range,

consider the

(a) factors, or explain its rationale for his sentence. He also

asserts that his sentence for the supervisory violation was procedurally unreasonable

because the court did not consider any policy statements, assess the required § 3553(a)

factors, or explain the basis for its sentence.

I. Sentence for the Substantive Offense

We review the procedural reasonableness of a sentence under a

ʺdeferential abuse‐of‐discretion standard.ʺ United States v. Aldeen,

(2d

Cir. 2015) (quoting Gall v. United States,

(2007)). We apply a plain error

standard, however, if the defendant raises his challenge for the first time on appeal.

United States v. Villafuerte,

, 207‐08 (2d Cir. 2007). Plain error is error that

(1) is plain, (2) affects substantial rights, and (3) seriously affects the fairness, integrity,

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or public reputation of judicial proceedings. United States v. Bonilla,

(2d Cir. 2010). Plain error review applies in this case because Perez did not raise his

sentencing objections to the district court below.

A. Guidelines Range and Factual Finding

ʺA sentence is procedurally unreasonable if the district court ʹfails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the

Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a

sentence based on clearly erroneous facts, or fails adequately to explain the chosen

sentence.ʹʺ Aldeen,

(emphasis omitted) (quoting United States v. Chu,

(2d Cir. 2013)). In calculating the Guidelines range, the court must make

its own factual findings or expressly adopt the presentence reportʹs findings at

sentencing or in a written statement of reasons. See United States v. Molina,

(2d Cir. 2004); United States v. Maturo,

(2d Cir. 1992).

Perez asserts plain error because the court did not calculate the Guidelines

range and applied the six‐point enhancement without first finding that his conduct

involved over $40,000 in counterfeit currency. He argues that the court did not

expressly adopt the presentence reportʹs finding of $75,000 in counterfeit currency, that

his conduct involved only $13,500 in counterfeit currency; and that he had no

opportunity to contest the $75,000 finding. While the court surely could have provided

a fuller explanation of its reasoning, we conclude there was no plain error here.

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As an initial matter, Perez had ample opportunity to contest the $75,000

finding in the presentence report. He did not file objections to the reportʹs $75,000

finding or the recommended enhancement, and neither his sentencing submission nor

his oral argument raised these issues. Indeed, the court specifically asked defense

counsel at sentencing if he agreed with the proposed Guidelines range, and he stated

that he did.

The record reflects that the district court satisfied its obligation to calculate

the Guidelines range and adopt factual findings in support. First, the presentence

report, which the court expressly adopted in its statement of reasons, included (1) an

adequate finding that Perez purchased $75,000 in counterfeit currency and (2) a

calculated Guidelines range of 37 to 46 months that was based, in part, on this finding.

Second, although the court did not explicitly engage in a Guidelines calculation at

sentencing, it did refer to the proposed Guidelines range at the start of sentencing and

confirm that Perez agreed with this range. Third, the courtʹs statement of reasons set

forth its calculation of the Guidelines range, which matched the calculation in the

presentence report. We therefore identify no error in the courtʹs Guidelines calculation

or its adoption of the presentence reportʹs findings, and we decline to vacate the

sentence on these grounds. See Aldeen,

(requiring calculation of

Guidelines range); Molina,

(holding that express adoption of factual

findings in presentence report is sufficient).

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B. Section §3553(a) Factors and Explanation of Sentence

ʺSection 3553(a) of Title 18 requires a district court to consider several

factors in determining a sentence.ʺ United States v. Wagner‐Dano,

(2d Cir.

2012). The court need not, however, ʺutter ʹrobotic incantationsʹ repeating each factor

that motivates a sentence,ʺ United States v. Corsey,

(2d Cir. 2013) (per

curiam) (citing United States v. Crosby,

(2d Cir. 2005), abrogated on other

grounds by United States v. Fagans,

(2d Cir. 2005)), or precisely identify the

§ 3553(a) factors or address specific arguments bearing on their application, United

States v. Fernandez,

(2d Cir. 2006), abrogated on other grounds by Rita v.

United States,

(2007). ʺ[W]e presume, in the absence of record evidence

suggesting otherwise, that a sentencing judge has faithfully discharged [his] duty to

consider the statutory factors.ʺ Fernandez,

.

Here, the record reflects that the district court adequately considered the

§ 3553(a) factors at sentencing. The parties filed sentencing submissions that discussed

the statutory factors and described Perezʹs personal background, his criminal history,

the nature of his counterfeiting offense, and the years he spent evading authorities. The

presentence report elaborated on Perezʹs conduct, his criminal convictions, and his

personal characteristics in greater detail. At sentencing, Perez, through counsel, orally

reviewed the § 3553(a) factors and described Perezʹs advanced age, physical health,

chronological history, and cooperation with the government. The court made a

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comment during Perezʹs argument and allocution and it was clear that the court was

listening to the concerns Perez raised. The court then informed the parties, before

announcing its sentence, that it taken into consideration the sentencing submissions,

oral arguments, Perezʹs allocution, Perezʹs nearly 20 years as a fugitive, and the need for

ʺa sentence thatʹs sufficient but not greater than necessary.ʺ App. 35. We thus conclude

from this record that the district court ʺfaithfully discharged [its] duty to consider the

statutory factors,ʺ Fernandez,

, and we affirm Perezʹs sentence for the

substantive counterfeiting offense.

II. Sentence for Violation of Supervised Release

We need not address Perezʹs procedural challenge to his 18‐month

sentence for the supervisory violation, which runs concurrently with his 37‐month

sentence for the substantive offense, because any error arising from the imposition of

this sentence does not affect Perezʹs substantial rights. See Bonilla,

(requiring that plain error affect substantial rights); see also United States v. McNeil,

(2d Cir. 2005) (applying general sentencing standards to sentences for

supervisory violations).

We have considered Perezʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgments of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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