19-4141-cr United States v. Sepulveda

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 8th day of April, two thousand twenty-one.

PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, STEVEN J. MENASHI, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 19-4141-cr

WILFREDO SEPULVEDA, AKA DIONICIO DE LA CRUZ RODRIGUEZ

Defendant-Appellant. ____________________________________________ For Appellee: KYLE A. WIRSHBA, Assistant United States Attorney (Elinor L. Tarlow, Anna M. Skotko, Assistant United States Attorneys, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY

For Appellant: YU HAN (Noam Biale, Michael Tremonte, on the brief), Sher Tremonte LLP, New York, NY

Appeal from a judgment of the United States District Court for the Southern

District of New York (Sullivan, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Wilfredo Sepulveda appeals from his judgment of

conviction in the United States District Court for the Southern District of New York

for Hobbs Act Robbery, in violation of

; distributing and

possessing with intent to distribute 40 grams or more of fentanyl, in violation of

(a)(1) and (b)(1)(B); and distributing and possessing with intent to

distribute one kilogram or more of heroin, in violation of

(a)(1) and

(b)(1)(A). The district court sentenced Sepulveda to 288 months’ imprisonment,

2 which exceeded the applicable range under the United States Sentencing

Guidelines by 53 months, or roughly 4.5 years. On appeal, Sepulveda challenges

the procedural and substantive reasonableness of his sentence. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

I

“We review sentencing decisions for procedural and substantive

reasonableness.” United States v. Eaglin,

(2d Cir. 2019). Our review

of a sentence is “akin to review for abuse of discretion, under which 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. Corsey,

(2d Cir. 2013).

A district court commits procedural error if it fails to calculate the

sentencing range recommended under the federal Sentencing Guidelines, makes

a mistake in calculating the Guidelines range, or treats the Guidelines as

mandatory. United States v. Cavera,

(2d Cir. 2008) (en banc). The

district court also commits procedural error if it fails to consider the sentencing

factors listed in

(a), rests its sentence on a clearly erroneous finding

3 of fact, or fails adequately to explain its sentence.

The court’s explanation of its

sentence “must satisfy us that it has ‘considered the parties’ arguments’ and that

it has a ‘reasoned basis for exercising its own legal decisionmaking authority.’”

at 193 (quoting Rita v. United States,

(2007)) (alteration omitted).

In addition, the court “must include ‘an explanation for any deviation from the

Guidelines range,’” which requires the court to “say why [it] is doing so, bearing

in mind … that ‘a major departure from the Guidelines should be supported by a

more significant justification than a minor one.’” Id. at 190, 193 (quoting Gall v.

United States,

-51 (2007)) (alteration omitted).

“Once we have determined that the sentence is procedurally sound, we then

review the substantive reasonableness of the sentence, reversing only when the

trial court’s sentence ‘cannot be located within the range of permissible

decisions.’” United States v. Dorvee,

(2d Cir. 2010) (quoting Cavera,

). At this stage of review, “an appellate court may consider whether

a factor relied on by a sentencing court can bear the weight assigned to it.” United

States v. Rigas,

(2d Cir. 2009). Because such review is

“deferential,” it is not our place to “consider what weight we would ourselves

have given a particular factor.”

Instead, “we consider whether the factor, as

4 explained by the district court, can bear the weight assigned it under the totality

of circumstances in the case.”

II

Applying these principles, we hold that Sepulveda’s sentence was

procedurally and substantively reasonable. Sepulveda’s arguments to the contrary

are without merit.

First, Sepulveda argues that his sentence was procedurally unreasonable

because the district court “failed adequately to explain its substantial upward

variance” from the Guidelines range. Appellant’s Br. 20. In fact, the district court

provided a lengthy explanation for its decision to impose an above-Guidelines

sentence, which included an extended discussion of the violent nature of the

offense, Sepulveda’s long history of criminal conduct, the failure of previous

punishments—including substantial terms of incarceration and deportation—to

deter Sepulveda’s future criminal conduct, and that Sepulveda had on several

occasions violently resisted arrest. The district court acted within its discretion to

decide that these factors warranted an above-Guidelines sentence, and the district

court’s explanation for its sentence “satisf[ies] us that it … ‘considered the parties’

arguments’ and that it ha[d] a ‘reasoned basis for exercising its own legal

5 decisionmaking authority.’” Cavera,

(quoting Rita,

)

(alteration omitted).

Next, Sepulveda contends that the district court erred by imposing an

above-Guidelines sentence based on factors for which the Guidelines already

accounted, including the robbery, Sepulveda’s use of a firearm, and Sepulveda’s

criminal history. But considering these factors was not error. Indeed,

(a)(1) instructs judges to “consider … the nature and circumstances of the

offense” as well as “the history and characteristics of the defendant” when

“determining the particular sentence to be imposed.” Moreover, a district court

may “rely[] on a factor that is already incorporated into the Guidelines range to

impose an above-Guidelines sentence” as long as it “articulate[s] specifically the

reasons that this particular defendant’s situation is different from the ordinary

situation covered by the Guidelines calculation.” United States v. Allen,

(2d Cir. 2016) (alteration omitted). The district court did so by

emphasizing not only the facts that Sepulveda had committed a robbery, used a

firearm, and had a criminal history, but that the robbery was particularly violent,

that Sepulveda used a firearm to threaten an 83-year-old woman, and that

6 Sepulveda’s history of criminal conduct was both serious and indicated that less

severe punishments had failed to deter him.

Additionally, the district court did not, as Sepulveda contends, ignore

binding precedent when considering Sepulveda’s criminal history category. While

the district court expressed disagreement with precedent under which Sepulveda

could not be considered a “career offender” for federal sentencing purposes based

on his prior narcotics convictions, the court affirmed that it would not find that

Sepulveda was a career offender. The district court even disclaimed reliance on

Sepulveda’s criminal history category altogether when imposing its sentence,

focusing instead on Sepulveda’s past history of criminal conduct. The record thus

confirms that the district court did not improperly designate Sepulveda as a career

offender in derogation of binding precedent, nor did it rely on that designation in

fixing its sentence.

Sepulveda further argues that the district court committed procedural error

by considering acquitted conduct at sentencing. Specifically, Sepulveda claims

that the court should not have considered his use of a firearm at sentencing

because the jury acquitted Sepulveda of the violation of

(c) charged

in the superseding indictment. Sepulveda argues that by considering acquitted

7 conduct at sentencing and justifying an enhanced sentence based on that conduct,

the district court “undermine[d] the ‘unassailable’ finality of the jury’s verdict”

and “violate[d] due process.” Appellant’s Br. 31 (quoting Yeager v. United States,

(2009)). The Supreme Court has made clear, however, that “a

jury’s verdict of acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct has been proved

by a preponderance of the evidence.” United States v. Watts,

(1997). Here, the district court’s finding that Sepulveda used a firearm during the

robbery was supported by a preponderance of the evidence—which included eye-

witness testimony, the recovery of the firearm from the crime scene, and

Sepulveda’s DNA on the firearm’s trigger and trigger guard—and thus did not

violate due process. See

(“[A]pplication of the preponderance standard

at sentencing generally satisfies due process.”). And because “there is no logical

inconsistency in determining that a preponderance of the evidence supports a

finding about which there remains a reasonable doubt,” United States v. Vaughn,

(2d Cir. 2005), the district court’s consideration of Sepulveda’s

use of a firearm did not upset the finality of the jury’s verdict.

8 We accordingly hold that Sepulveda’s sentence was procedurally

reasonable.

III

We also hold that Sepulveda’s sentence was substantively reasonable. “Our

review for substantive unreasonableness is ‘particularly deferential.’” United States

v. Aldeen,

(2d Cir. 2005). “We will set aside sentences as

substantively unreasonable only in exceptional cases where the trial court’s

decision cannot be located within the range of permissible decisions, that is, when

sentences are so shockingly high, shockingly low, or otherwise unsupportable as

a matter of law that allowing them to stand would damage the administration of

justice.”

(internal quotation marks omitted). As noted above, in assessing

substantive reasonableness, we do not consider “what weight we would ourselves

have given a particular factor” in fixing the defendant’s sentence but rather

“whether the factor, as explained by the district court, can bear the weight

assigned it under the totality of circumstances in the case.” Rigas,

.

Sepulveda argues that his above-Guidelines sentence of 288 months’—or 24

years—imprisonment is substantively unreasonable because it vastly exceeds the

typical sentences imposed for defendants convicted of robbery in the same

9 criminal history category as Sepulveda. Assuming, arguendo, that the data on

which Sepulveda relies is accurate, that disparity is not enough for us to determine

that his sentence is substantively unreasonable. The question is whether the

district court’s sentence “cannot be located within the range of permissible

decisions.” Dorvee,

.

We cannot say that the district court’s sentence fell outside the range of

permissible decisions. The district court explained that an above-Guidelines

sentence was warranted in light of Sepulveda’s long history of criminal conduct

and the failure of his prior, shorter sentences and deportation to deter him from

committing further crimes. That factor, combined with the violent nature of the

instant offense, Sepulveda’s threatening of an elderly woman, and Sepulveda’s

history of violently resisting arrest were sufficient—under our deferential

standard of review—to justify the district court’s above-Guidelines sentence. In

sum, we do not conclude that Sepulveda’s sentence, in light of those factors, was

so “shockingly high” as to “damage the administration of justice.” Aldeen,

.

10 We have considered Sepulveda’s remaining arguments, which we conclude

are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

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

11