19-2664-cr (L) United States v. Rojas

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 5th day of May, two thousand twenty-one. 4 5 PRESENT: ROBERT D. SACK, 6 RICHARD C. WESLEY, 7 RICHARD J. SULLIVAN, 8 Circuit Judges. 9 _____________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee, 14 Nos. 19-2664-cr (Lead), 15 19-3148-cr (Con), 16 19-3161-cr (Con), 17 19-3167-cr (Con) 18 v. 19 20 FELIX ROJAS, ODILON MARTINEZ-ROJAS, 1 SEVERIANO MARTINEZ-ROJAS, JOVAN 2 RENDON-REYES, 3 4 Defendants-Appellants. *† 5 _____________________________________ 6 7 FOR DEFENDANTS-APPELLANTS: LAWRENCE D. GERZOG, Law Offices of 8 Lawrence D. Gerzog, New York, NY 9 for Felix Rojas. 10 11 INES DE CROMBRUGGHE MCGILLION, 12 Ines McGillion Law Offices, PLLC, 13 Putney, VT for Odilon Martinez- 14 Rojas. 15 16 ROBIN CHRISTINE SMITH, Law Office 17 of Robin C. Smith, Esq. P.C., San 18 Rafael, CA, and LEEAN OTHMAN, 19 Fremont, CA, for Severiano Martinez- 20 Rojas. 21 22 FOR APPELLEE: MARGARET LEE (Susan Corkery, on the 23 brief), Assistant United States 24 Attorneys, for Mark J. Lesko, Acting 25 United States Attorney for the Eastern 26 District of New York, Brooklyn, NY. 27 28 Appeal from the United States District Court for the Eastern District of New

29 York (Edward R. Korman, Judge).

30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

The Clerk of Court is respectfully directed to amend the official case caption as set forth above. *

† The Appeal for Jovan Rendon-Reyes, No. 19-3167, is determined by separate order filed today.

2 1 ADJUDGED, AND DECREED that the judgment of the district court is

2 AFFIRMED.

3 Defendants-Appellants Felix Rojas (“FR”), Odilon Martinez-Rojas (“OMR”),

4 and Severiano Martinez-Rojas (“SMR”) (identified individually by their initials

5 and collectively as “Defendants”) appeal various aspects of their sentences

6 imposed by the district court (Korman, J.) after convictions following their guilty

7 pleas for racketeering (

(c)) and sex trafficking by force, fraud, or

8 coercion (

(a)(1), (b)(1)). Defendants took part in a trafficking

9 organization that smuggled young, poor women from Latin America – including

10 victims identified here as Jane Does 1–9 – to the United States and forced them into

11 prostitution for the profit of the organization’s members.

12 Each Defendant entered into a plea agreement in which he conditionally

13 waived his right to challenge his conviction and sentence on appeal. Defendants

14 pleaded guilty to individual racketeering and sex trafficking charges with respect

15 to various Jane Does. The district court ultimately sentenced FR to a term of 300

16 months’ imprisonment and five years’ supervised release, and OMR and SMR

17 both to 293 months’ imprisonment and five years’ supervised release. After a

18 restitution hearing, the court also ordered FR, OMR, and SMR to pay restitution

3 1 in amounts of $367,500, $476,700, and $658,300, respectively, all of which was joint

2 and several as to overlapping victims.

3 We assume the parties’ familiarity with the underlying facts, procedural

4 history, and issues on appeal.

5 I. Challenges to the Restitution Orders

6 Although each of the Defendants pleaded guilty pursuant to a plea

7 agreement with an appeal waiver, none of the agreements specifically addressed

8 whether the waiver extended to restitution. Accordingly, Defendants are free to

9 challenge their restitution awards on appeal. See United States v. Oladimeji,

152, 156–57 (2d Cir. 2006) (allowing appeal of restitution order because appellate

11 waiver in plea agreement could reasonably be read “not to cover determinations

12 of restitution”). Generally, we review restitution orders deferentially and will

13 reverse only for abuse of discretion. United States v. Pearson,

(2d

14 Cir. 2009) (finding abuse where “a challenged ruling rests on an error of law, a

15 clearly erroneous finding of fact, or otherwise cannot be located within the range

16 of permissible decisions” (internal quotation marks omitted)).

17 Defendants principally argue that their restitution orders should be vacated

18 because the court lacked sufficient evidence to order such “excessive” amounts.

4 1 FR and OMR also argue that the court lacked sufficient proof to calculate any

2 restitution amount for Jane Doe 7 because her affidavit, which stated that she was

3 trafficked for “several years,” contained no exact dates.

4 Congress has mandated restitution for victims of sex-trafficking crimes.

5 Consequently, courts must “direct the defendant to pay the victim . . . the full

6 amount of the victim’s losses,” which includes “the greater of the gross income or

7 value to the defendant of the victim’s services or labor or the value of the victim’s

8 labor as guaranteed under the minimum wage and overtime guarantees of the Fair

9 Labor Standards Act.”

(b)(1), (b)(3). 1 The government bears “[t]he

10 burden of demonstrating the amount of the loss sustained by a victim as a result

11 of the offense,” and the court must resolve “[a]ny dispute as to the proper amount

12 or type of restitution . . . by the preponderance of the evidence.”

§ 3664(e).

13 In estimating the restitution amounts for the victims here, the government

14 relied on information provided by the victims and multiplied the average number

15 of sex acts the victims were forced to perform each week (70) by the average price

1“[T]he term ‘full amount of the victim's losses’ includes any costs incurred, or that are reasonably projected to be incurred in the future, by the victim, as a proximate result of the offenses involving the victim,” and includes: “medical services relating to physical, psychiatric, or psychological care”; “physical and occupational therapy or rehabilitation”; “necessary transportation, temporary housing, and child care expenses”; “lost income”; “reasonable attorneys' fees, as well as other costs incurred”; and “any other relevant losses incurred by the victim.”

(c)(2); see

§ 1593(b)(3).

5 1 per transaction ($15) to reach a monthly estimate of $4,200. The government then

2 multiplied this monthly estimate, which it described as “conservative,” by the total

3 number of months each victim worked as alleged in the superseding indictment

4 and as the victims recounted in their statements. After reviewing the victims’

5 statements, Defendants’ Presentence Investigation Reports (the “PSRs”), and

6 Defendants’ various plea agreements, the district court held a hearing on

7 restitution before accepting the government’s proposed amount for Jane Doe 7 –

8 using a 14-month trafficking period well within her stated period of “several

9 years” – and further reducing the “conservative” restitution proposals for most

10 other victims.

11 Based on this record, including the sworn statements of Jane Doe 7 and other

12 victims, we cannot say that the district court abused its discretion in ordering the

13 restitution awards it did. As we said in United States v. Gushlak, “[s]o long as the

14 basis for reasonable approximation is at hand, difficulties in achieving exact

15 measurements will not preclude a trial court from ordering restitution.”

(2d Cir. 2013) (internal quotation marks omitted); see

at 195–96 (noting

17 that courts need not determine restitution with “mathematical[] precis[ion]”;

18 rather, “a reasonable approximation will suffice, especially in cases in which an

6 1 exact dollar amount is inherently incalculable” (internal quotation marks

2 omitted)). This point is especially pertinent in calculating losses associated with

3 sex trafficking crimes, which rarely involve detailed contemporaneous records

4 from defendants or third parties.

5 FR separately argues that his restitution order should be set aside because

6 the plea agreement gave the court limitless discretion to impose restitution; that

7 FR had no notice that restitution could be imposed jointly and severally; and that

8 FR had no notice that restitution would be imposed for Jane Does 3, 5, and 7. But

9 this additional challenge to his restitution order, which FR mischaracterizes as a

10 Rule 11 argument, is unpersuasive.

11 First, the district court fully complied with Rule 11 when it specifically asked

12 FR before his plea if he understood that restitution was mandatory and would be

13 “in the full amount of each victim’s losses as determined by the judge.” SMR App.

14 at 163; see also Fed. R. Crim. P. 11(b)(1) (explaining that before accepting a guilty

15 plea in open court, “the court must inform the defendant of, and determine that

16 the defendant understands . . . the court’s authority to order restitution”). FR

17 confirmed his knowledge of this fact; he also confirmed that he had read and

18 understood his plea agreement, which stipulated that Jane Does 3, 5, and 7 were

7 1 victims under the United States Sentencing Guidelines and stated that the

2 penalties for his charged conduct included mandatory restitution “in the full

3 amount of each victim’s losses as determined by the Court.” Gov. App. at 2–5.

4 The district court was not required to state an exact amount of mandatory

5 restitution at the time of FR’s plea, nor did it need to state whether restitution

6 would be imposed jointly and severally. See United States v. Nucci,

,

7 422–23 (2d Cir. 2004); cf. Fed. R. Crim. P. 11 advisory committee’s note to 1985

8 amendment (explaining that where a statute “contemplates that the [restitution]

9 amount . . . will be ascertained later in the sentencing process,” the “exact amount

10 or upper limit” of restitution “cannot and need not be stated at the time of the

11 plea”).

12 Nor has FR shown that but for the alleged Rule 11 violation he would not

13 have pleaded guilty. 2 This is perhaps not surprising since, as the government

14 notes, “the benefits [FR] gained by virtue of the guilty plea and the perils he would

15 face were the plea to be upended” make withdrawal of his plea singularly

2Because FR failed to object at the time of his plea, the alleged Rule 11 violation is subject to plain error review on appeal. See United States v. Youngs,

(2d Cir. 2012). “[T]o show that a Rule 11 violation was plain error, the defendant must demonstrate that there is a reasonable probability that, but for the error, he would not have entered the plea.”

(internal quotation marks omitted).

8 1 unattractive. Appellee Br. at 54. For all these reasons, we reject FR’s separate

2 challenge to his restitution order.

3 II. Challenges to OMR’s and SMR’s Terms of Incarceration

4 Although OMR and SMR both signed plea agreements that waived their

5 rights to appeal a sentence below 327 months “without regard to the sentencing

6 analysis used by the Court,” each now challenges the district court’s application

7 of certain enhancements in their respective sentences.

8 A. Vulnerable Victim Enhancements

9 SMR argues that the district court wrongly applied the enhancement for

10 vulnerable victims pursuant to Sentencing Guidelines § 3A1.1(b)(1) with respect

11 to Jane Does 1, 4, and 9. He concedes that he waived his right to challenge his

12 sentence in his plea agreement but argues that the waiver is unconscionable in

13 light of the high sentence he faced. We have consistently held that “[w]aivers of

14 the right to appeal a sentence are presumptively enforceable.” United States v.

15 Riggi,

(2d Cir. 2011) (internal quotation marks omitted). There

16 are a few exceptions to this general rule – for example, (1) when the defendant’s

17 sentence was “based on constitutionally impermissible factors, such as ethnic,

18 racial or other prohibited biases,” (2) “when the government breached the plea

9 1 agreement,” or (3) “when the sentencing court failed to enunciate any rationale for

2 the defendant’s sentence, thus amounting to an abdication of judicial

3 responsibility subject to mandamus.” United States v. Gomez-Perez,

,

4 319 (2d Cir. 2000) (alteration and internal quotation marks omitted). But where,

5 as here, none of those narrow exceptions apply, “[k]nowing and voluntary

6 appellate waivers included in plea agreements must be enforced because, if they

7 are not, the covenant not to appeal becomes meaningless and would cease to have

8 value as a bargaining chip in the hands of defendants.” United States v. Granik, 386

(2d Cir. 2004) (internal quotation marks omitted). We therefore

10 uphold SMR’s appellate waiver and conclude that he cannot challenge his

11 sentence.

12 B. Serious Bodily Injury Enhancement

13 OMR argues that his sentence should be vacated because the district court

14 violated Rule 32 of the Federal Rules of Criminal Procedure – depriving him of

15 due process and effective counsel – when it failed to determine a “controverted

16 fact” before applying an enhancement for serious bodily injury under Sentencing

17 Guidelines § 2A3.1(b)(4)(B) (the “SBI enhancement”). 3 The parties stipulated to

3 Rule 32 requires courts to, “for any . . . controverted matter[,] rule on the dispute [at sentencing]

10 1 the SBI enhancement in OMR’s plea agreement, but the probation officer declined

2 to apply it in the PSR. The government then advocated for the SBI enhancement

3 at OMR’s sentencing hearing in January 2019 on the theory that OMR had forced

4 Jane Doe 1 to get a large tattoo against her will to mark her as his property. After

5 the parties discussed the tattoo and the SBI enhancement, the district court applied

6 the enhancement and imposed sentence on OMR. The district court nevertheless

7 directed the government to provide additional evidence to further support the

8 finding of Jane Doe 1’s “extreme pain,” which is a prerequisite for a SBI

9 enhancement. See OMR Second App. at 179 (“I will [apply the enhancement]

10 under extreme physical pain on the condition that [the government] provide me,

11 before I enter the judgment with evidence of that because I’m not prepared to take

12 judicial notice of it . . . .”); U.S. Sentencing Guidelines Manual § 1B1.1, cmt. app.

13 n.1(M) (U.S. Sentencing Comm’n 2018). A few weeks later, the government filed

14 declarations from (1) a Department of Homeland Security agent detailing his

15 conversation with Jane Doe 1 about the pain caused by her forced tattooing, and

or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Having ruled on the matter, the court then “must append a copy of the court’s determinations under [Rule 32] to any copy of the presentence report made available to the Bureau of Prisons.” Id. 32(i)(3)(C).

11 1 (2) a dermatologist discussing the pain associated with tattoos and their removal.

2 OMR did not object to the declarations or request an additional hearing on the

3 issue. On September 10, 2019, the district court held a restitution hearing for OMR,

4 at which OMR and his counsel were present. At no time during that proceeding

5 did OMR object to the filing of the declarations or otherwise challenge the SBI

6 enhancement. Approximately two weeks later, the court docketed the judgment

7 for OMR in conformity with the oral sentence imposed on January 3, 2019.

8 OMR contends that the appellate waiver contained in his plea agreement is

9 unenforceable because the district court violated Rule 32 of the Federal Rules of

10 Criminal Procedure and “failed to enunciate any rationale for” the SBI

11 enhancement, which “amounted to an abdication of judicial responsibility.”

12 United States v. Woltmann,

, 42–43 (2d Cir. 2010) (alteration and

13 internal quotation marks omitted) (explaining that a court’s complete refusal to

14 consider mitigating evidence or mandatory sentencing factors “denied the parties

15 [of] their bargain and reasonable expectations” under the plea agreement and

16 rendered the appeal waiver unenforceable).

17 But even if it could be argued that the district court committed “meaningful

18 error” in failing to make an express determination about whether the forcible

12 1 tattooing of Jane Doe 1 caused “extreme pain” based on the evidence before it at

2 OMR’s sentencing, Riggi,

, this error did not constitute “an

3 abdication of judicial responsibility” sufficient to render OMR’s appeal waiver

4 unenforceable, see Woltmann,

(internal quotation marks omitted)

5 (explaining that the court’s refusal to consider certain Guidelines factors or

6 evidence at sentencing was “an error categorically different from a misapplication

7 of a guideline, or a mistake of law, or a dubious finding of fact”). In United States

8 v. Buissereth, we upheld an appellate waiver even though the district court failed

9 to rule on objections to the PSR, calculate a sentencing range under the Sentencing

10 Guidelines, or consider relevant § 3553 factors at sentencing.

, 115–17

11 (2d Cir. 2011). There, the district court issued a written judgment post-sentencing

12 that made necessary factual findings and identified a Guidelines range consistent

13 with the range anticipated by the parties in the plea agreement.

. We

14 noted that the sentence imposed by the district court was “not ‘fundamentally

15 unfair’” because it “was reasonably foreseeable at the time of [the defendant’s]

16 plea and undoubtedly taken into account by [the defendant] and his counsel in

17 entering the plea agreement.”

; see also United States v. Arevalo,

, 97–99 (2d Cir. 2010) (holding that appellate waiver barred Rule 32 challenge on

13 1 appeal where a district court’s failure to make findings regarding disputed

2 portions of the PSR at sentencing in violation of Rule 32 was not an abdication of

3 judicial responsibility). Thus, “[w]hile [OMR’s] appeal waiver did not relieve the

4 District Court of its responsibility to follow the procedural requirements related to

5 the imposition of a sentence,” it precludes us “from correcting the errors alleged

6 to have occurred below.” See Buissereth,

.

7 We note that OMR’s counsel had opportunities to object to the SBI

8 enhancement before and during OMR’s sentencing proceeding but did not do so.

9 Further, OMR’s plea agreement, which significantly “capped his sentencing

10 exposure,” Riggi,

, expressly contemplated the imposition of a two-

11 level SBI enhancement. Since the sentence imposed by the district court fell within

12 the sentencing range set forth in the plea agreement, we cannot say that

13 enforcement of OMR’s waiver here “impugn[s] the integrity of the judiciary or the

14 sentencing process,” id.; see Buissereth,

. 4 We thus conclude that

15 OMR’s appeal waiver is enforceable and that his challenge to his sentence fails.

4It bears noting that the tattoo forcibly imposed on Jane Doe 1 arguably constituted an “obvious disfigurement that is likely to be permanent,” which would have justified a four-level enhancement for “permanent bodily injury.” See U.S.S.G. § 1B1.1 cmt. app. n. 1(K). Were we to remand this issue to the district court, the court could reasonably decide to apply the four-level enhancement and sentence OMR to a longer term of imprisonment.

14 1 III. Ineffective Assistance of Counsel Claims

2 OMR and SMR bring claims of ineffective assistance of counsel on direct

3 appeal, arguing that their respective attorneys failed to object at key points in

4 sentencing. “When faced with a claim for ineffective assistance on direct appeal,”

5 we may choose to: “(1) decline to hear the claim, permitting the appellant to raise

6 the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28

; (2) remand the claim to the district court for necessary factfinding;

8 or (3) decide the claim on the record before us.” United States v. Morris,

(2d Cir. 2003). We have generally expressed a “baseline aversion to

10 resolving ineffectiveness claims on direct review,”

based in part on the belief

11 that an “allegedly ineffective attorney should generally be given the opportunity

12 to explain the conduct at issue,” United States v. Khedr,

(2d Cir.

13 2003). Because these ineffective assistance claims would best be heard by the

14 district court, where defense counsel would be afforded an opportunity to explain

15 their conduct, we decline to review them now. Defendants OMR and SMR may

16 choose to pursue their claims in a subsequent petition for writ of habeas corpus

17 pursuant to

. See Morris,

.

15 1 IV. Conclusion

2 We have considered Defendants’ remaining arguments and conclude that

3 they are meritless. For the foregoing reasons, the judgment of the district court is

4 AFFIRMED.

5 FOR THE COURT: 6 Catherine O'Hagan Wolfe, Clerk of Court

16