20-966-cr United States of America v. Barrera

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 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 9th day of February, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, WILLIAM J. NARDINI, Circuit Judges. _______________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 20-966

EMILIO ALEJANDRO BARRERA,

Defendant- Appellant. _______________________________________

FOR APPELLEE: DANIELLE M. KUDLA (Danielle R. Sassoon, on the brief), Assistant United States Attorneys, for Audrey Strauss, Acting United States Attorney, Southern District of New York, New York, NY.

FOR DEFENDANT-APPELLANT: MARK GOMBINER (Colleen P. Cassidy, on the brief), Federal Defenders of New York, Inc., New York, NY. On appeal from the United States District Court for the Southern District of New York (Jed

S. Rakoff, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

Defendant-Appellant Emilio Alejandro Barrera appeals from a judgment of conviction

entered on March 9, 2020, by the district court. On October 30, 2019, Barrera pleaded guilty to

one count of illegally reentering the United States following removal subsequent to a conviction

for an aggravated felony, in violation of

(a) and (b)(2). The district court

sentenced Barrera principally to 24 months in prison. We assume the reader’s familiarity with the

record and issues in this case.

Barrera argues that his sentence is procedurally unreasonable because the district court

based its sentencing analysis in part on dismissed narcotics charges. He cites United States v.

Juwa, in which this Court held that, “at sentencing, an indictment or a charge within an indictment,

standing alone and without independent substantiation, cannot be the basis upon which a criminal

punishment is imposed.”

(2d Cir. 2007).

In reviewing the procedural reasonableness of a criminal sentence, this Court generally

uses “a deferential abuse-of-discretion standard.” United States v. Yilmaz,

(2d

Cir. 2018). Here, however, the Government asks the Court to review Barrera’s argument for plain

error, the standard of review applicable to claims of error not raised in the district court. See United

States v. Rosa,

(2d Cir. 2020) (“We review for plain error where . . . the

defendant failed to raise [an] objection below.”). We conclude that Barrera adequately preserved

2 his objection below by protesting as soon as the district court first mentioned the charges at issue,

triggering an extensive discussion between the Government and the district court on the propriety

of considering the charges at sentencing. Accordingly, we apply our traditional abuse-of-

discretion standard to Barrera’s claim.

Even under this usual standard, there was no procedural error. The district court expressly

declined to consider the narcotics charges at issue. Barrera mischaracterizes the sentencing

transcript in claiming that the court subsequently changed its mind. The transcript reflects only an

exchange in which the district court clarified the Government’s position regarding consideration

of the charges, not its own view. The court’s statements did not suggest that it was giving any

weight to the dismissed narcotics charges.

We have considered Barrera’s remaining arguments and conclude that they are without

merit. For the foregoing reasons, the order of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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