18‐1367‐cr United States of America v. Martinez‐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 23rd day of April, two thousand nineteen.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, Circuit Judges, LEWIS A. KAPLAN, District Judge.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 18‐1367‐cr

BAYRON HEBERTO MARTINEZ‐PEREZ, AKA BAYRON HERBERTO MARTINEZ‐PEREZ, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Judge Lewis A. Kaplan of the Southern District of New York, sitting by designation.

FOR APPELLEE: Paul D. Silver, Assistant United States Attorney, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Albany, New York.

FOR DEFENDANT‐APPELLANT: James P. Egan and Melissa A. Tuohey, Assistant Federal Public Defenders, for Lisa A. Peebles, Federal Public Defender, Syracuse, New York.

Appeal from the United States District Court for the Northern District of

New York (Suddaby, C. J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Bayron Heberto Martinez‐Perez appeals from a

judgment of conviction, entered April 30, 2018, following his guilty plea to one count of

illegal re‐entry of a removed alien, in violation of

(a). Martinez‐Perez

waived the formal presentence report procedure, and the government did not object.

The district court proceeded to sentence Martinez‐Perez immediately following his

guilty plea, imposing a sentence of five monthsʹ imprisonment and one yearʹs

supervised release. On appeal, Martinez‐Perez challenges the district courtʹs imposition

of the one‐year term of supervised release as procedurally unreasonable. We assume

the partiesʹ familiarity with the underlying facts, procedural history, and issues on

appeal.

‐ 2 ‐

I. Standard of Review

Martinez‐Perez did not object to the imposition of the term of supervised

release during his sentencing. Where a defendant did not object to the reasonableness

of his sentence before the district court, we review the district courtʹs decision for plain

error. United States v. Verkhoglyad,

(2d Cir. 2008); United States v.

Villafuerte,

(2d Cir. 2007). ʺTo establish plain error, the defendant must

establish (1) error (2) that is plain and (3) affects substantial rights.ʺ Villafuerte,

.

II. Applicable Law

A sentence is procedurally unreasonable if the district court fails to

calculate the Guidelines range, mistakenly calculates the Guidelines range, fails to

consider the § 3553(a) factors, or bases the sentence on clearly erroneous factual

findings. United States v. Cavera,

(2d Cir. 2008) (en banc). Under the

Guidelines, a ʺcourt ordinarily should not impose a term of supervised release in a case

in which supervised release is not required by statute and the defendant is a deportable

alien who likely will be deported after imprisonment.ʺ U.S.S.G. § 5D1.1(c). A court

may, however, impose a period of supervised release for a defendant convicted of

illegal re‐entry ʺif the district court finds that supervised release would provide an

added measure of deterrence and protection based on the facts and circumstances of a

‐ 3 ‐

particular case.ʺ United States v. Alvarado,

(2d Cir. 2013) (per curiam)

(internal quotation marks omitted); accord U.S.S.G. 5D1.1 cmt. n.5.

III. Application

Martinez‐Perez contends that his sentence was procedurally unreasonable

in two respects: (1) the district court failed to consider the statutory factors along with

the Guidelines; and (2) the district court failed to explain why it was deviating from

Section 5D1.1(c) of the Guidelines. Both arguments fail.

First, Martinez‐Perezʹs argument that the district court procedurally erred

because it failed to consider the § 3553(a) factors together with the Guidelines is without

merit. Although the district court agreed ʺto proceed with sentencing . . . without the

benefit of a Presentence Report,ʺ it also noted that it had sufficient information ʺto

enable the meaningful exercise of [its] sentencing authority pursuant to [§ 3553(a)].ʺ

Appʹx at 41. The district court considered the Information, the Pretrial Services Report,

and other documents, including counselsʹ submissions; correctly calculated the

Guidelines range; and then stated the following:

The Court notes that this will be the third time that this defendant will be removed from this country; the first time voluntarily, the second time by court order or by immigration order . . . . Certainly, he has been slow to get the message that he must not enter this country illegally, regardless of his intentions to work to provide money for family. He needs to understand that he is violating the laws of this country and he needs to understand that this behavior is costing the . . . United States a considerable expense as a result of his illegal conduct.

‐ 4 ‐

Id. at 41‐42. In imposing the one‐year term of supervised release, the district court

specifically noted that it was ʺvery certainʺ that Martinez‐Perez would be deported and

barred from returning to this country, but explained that it was imposing supervised

release ʺif for some reasonʺ Martinez‐Perez was given permission to re‐enter, in which

event he was required to report to the Probation Department. Id. at 42‐43.

On this record, including the fact that Martinez‐Perez had illegally entered

the country two prior times, it is evident that the district court considered the statutory

factors and the Guidelines and determined a term of supervised release would provide

an additional measure of deterrence and protection. See U.S.S.G. 5D1.1 cmt. n.5 (ʺThe

court should . . . consider imposing a term of supervised release on such a defendant if

the court determines it would provide an added measure of deterrence and protection

based on the facts and circumstances of a particular case.ʺ); Alvarado,

. Therefore, the district court properly considered the statutory factors and

determined that the one‐year term of supervised release was warranted.

Second, Martinez‐Perez argues that the district court did not explain why

it was deviating from the Guidelines because it did not distinguish its reasoning for

imposing five monthsʹ imprisonment from its imposition of supervised release. That

argument is unpersuasive. In Alvarado, we concluded that ʺ[a] district court is not

required explicitly to link its finding that added deterrence is needed to its decision to

impose a term of supervised release.ʺ

. We upheld the district courtʹs

‐ 5 ‐

imposition of supervised release based on an illegal re‐entry conviction even though

ʺthe District Court did not specifically state that supervised release (as opposed to

[defendantʹs] sentence generally) was designed to provide an additional measure of

deterrence.ʺ

. Moreover, the district courtʹs reasoning is apparent from its

comments discussed above. Thus, Martinez‐Perezʹs challenge to the procedural

reasonableness of the sentence on the ground that the district court failed to explain the

need for supervised release is unconvincing.

* * *

We have considered Martinez‐Perezʹs remaining arguments and find them

to be without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

‐ 6 ‐