20-3537-cr United States v. Bhaskar

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 21st day of June, two thousand twenty-two.

PRESENT: Pierre N. Leval, Denny Chin, Steven J. Menashi, Circuit Judges. ____________________________________________

United States of America,

Appellee,

v. No. 20-3537-cr

Sachin Aji Bhaskar,

Defendant-Appellant. ____________________________________________ For Appellee: TIFFANY H. LEE, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.

For Defendant-Appellant: SARAH KUNSTLER, Law Office of Sarah Kunstler, Brooklyn, NY.

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

District of New York (Skretny, J.).

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

DECREED that the judgment of the district court is AFFIRMED IN PART and

VACATED IN PART.

Defendant-Appellant Sachin Aji Bhaskar appeals from a judgment of

conviction following his guilty plea to one count of enticement of a minor in

violation of

(b). The charge arose out of Bhaskar’s sexual contact

with an 11-year-old girl, whom Bhaskar apparently believed to be 15. Bhaskar’s

sentencing hearing proceeded remotely, and the district court sentenced Bhaskar

to twenty years’ imprisonment. He argues that the district court erred in

sentencing him remotely, that the remote proceedings violated his right to

effective assistance of counsel, and that the sentence was procedurally and

2 substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

I

The Coronavirus Aid, Relief, and Economic Security Act, also known as the

CARES Act, created a statutory exception to the physical presence requirement of

Federal Rule of Criminal Procedure 43. It allows a district court to conduct a felony

sentencing hearing by videoconference if four conditions are met: (1) the Judicial

Conference of the United States finds that the COVID-19 pandemic will materially

affect the functioning of the federal courts; (2) the chief judge of the district court

finds that felony sentencings cannot be held in person without seriously

jeopardizing public health and safety; (3) the sentencing court “finds for specific

reasons” that “the sentencing cannot be further delayed without serious harm to

the interests of justice”; and (4) there is “consent of the defendant ... after

consultation with counsel.”

(b)(2)(A) & 4.

Bhaskar does not dispute that the first two conditions are satisfied here.

Rather, the questions on appeal are whether the remote sentencing proceeding

took place “with the consent of the defendant,”

§ 15002(b)(4), and whether the

sentencing judge adequately found “for specific reasons that the … sentencing …

3 [could not] be further delayed without serious harm to the interests of justice,” id.

§ 15002(b)(2)(A). Because Bhaskar made no objection, these issues are judged

under a plain error standard. Apart from the fact that we find that these two

requirements were satisfied, Bhaskar’s challenge on appeal clearly does not meet

the plain error standard.

A

A defendant’s consent to be sentenced by videoconference under the

CARES act “requires evidence of the defendant’s knowing and voluntary consent

after conferring with counsel.” United States v. Howell,

(7th Cir.

2022). The CARES Act “imposes no ‘specific procedural or evidentiary

requirements to prove … consent.’” United States v. Leroux, No. 20-CR-2184,

, at *5 (2d Cir. June 3, 2022) (quoting Howell,

). In this

case, the record shows that Bhaskar knowingly and voluntarily consented to be

sentenced by videoconference.

At the sentencing hearing, the district court asked Bhaskar, “are you

voluntarily consenting to go forward with sentencing remotely using this Zoom

platform?” App’x 295. Bhaskar answered “Yes.”

The district court then asked

Bhaskar whether he “had any drugs, alcohol or medicine this or morning that

4 interferes in any way with your clear thinking in your opinion, as far as this

sentencing is concerned?” App’x 295. Bhaskar answered “No.”

The district

court turned to Bhaskar’s counsel and asked “are there any issues that you see

with respect to the competency of your client today, in terms of his ability to

communicate with you and [his other counsel], as far as what he needs to do in

connection with sentencing?,” and Bhaskar’s counsel answered “No.”

The

district court then said that, “[w]ith respect to proceeding by Zoom, I do find that

there is voluntariness here” and that “[c]ounsel had discussed this with

Mr. Bhaskar.”

To be certain, the district court turned again to Bhaskar’s counsel:

“If that’s not accurate, let me know. … [H]as that discussion taken place?”

Bhaskar’s counsel answered “Yes.”

Based on this record, the district court

properly found that Bhaskar had knowingly and voluntarily consented to move

forward with the sentencing by videoconference.

Bhaskar argues that district court coerced the consent by indicating that it

would not grant any further adjournments. This argument is unpersuasive. Before

the sentencing date, the district court twice notified the parties that if Bhaskar did

not consent to proceed with his sentence by video conference, then all parties

would be required to attend in person on the scheduled sentencing date. And at

5 sentencing, the district court again noted that Bhaskar had the choice to proceed

in person if he so requested or demanded.

B

For sentencing to proceeding remotely, the CARES Act provides that the

district court must “find[] for specific reasons” that “the sentencing cannot be

further delayed without serious harm to the interests of justice.” Pub. L. No. 116-

136, § 15002(b)(2)(A). Bhaskar contends that the district court failed to make these

findings. We disagree.

At the sentencing hearing, the district court stated that appearing remotely

was “probably the most efficient and effective way to proceed” and that “the

interests of justice will be well of served by this proceeding.” App’x 293. The

district court further explained in a published order that the sentencing

proceeding should not be delayed because of Bhaskar’s “interest in finality” and

because “the public interest in health, safety and in an efficient resolution to this

matter, outweigh any harm that could result from proceeding by

videoconference.” App’x 287. Given these findings, we conclude that “[t]he record

as a whole … satisfies the requirements of § 15002(b)(2)(A).” Leroux,

, at *6.

6 II

Bhaskar suggests that he was denied effective representation by counsel

because the proceeding took place by videoconference. Claims of ineffective

assistance are typically based on the competence of defense counsel, but the

Supreme Court has also stated that “Government violates the right to effective

assistance when it interferes in certain ways with the ability of counsel to make

independent decisions about how to conduct the defense.” Strickland v.

Washington,

(1984).

The record does not support Bhaskar’s ineffective assistance of counsel

claim. The district court granted Bhaskar an additional adjournment to facilitate

discussions with his attorneys before sentencing and provided a private

“breakout” room at the outset of the sentencing proceeding. Moreover, Bhaskar

never indicated to the district court that there were any issues communicating with

his attorneys during his sentencing hearing, and Bhaskar and his counsel had the

opportunity to address the district court. To the extent that Bhaskar relies on a

moment at the sentencing hearing when he became emotional and his counsel

asked for “just a minute” to confer with him, it was Bhaskar himself who said he

did not want to confer and preferred to conclude his sentencing statement.

7 III

Bhaskar also challenges his sentence as both procedurally and substantively

unreasonable. Neither challenge is successful.

A district court commits “procedural error” when it (1) “fails to calculate the

Guidelines range (unless omission of the calculation is justified),” (2) “makes a

mistake in its Guidelines calculation,” (3) “treats the Guidelines as mandatory,”

(4) “does not consider the § 3553(a) factors,” (5) “rests its sentence on a clearly

erroneous finding of fact,” or (6) “fails adequately to explain its chosen sentence.”

United States v. Cavera,

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

Bhaskar argues that the district court committed procedural error because it

failed to articulate the reasons for the particular sentence imposed. The record

does not support this argument. The district court explained it based the sentence

on its determinations that Bhaskar’s expression of remorse was “not genuine” and

was “replete with excuses” and that Bhaskar was “a child sexual predator and a

danger to the community.” App’x 346. The district court further explained that

Bhaskar’s victimization of a minor was a “nightmare” that required deterrence lest

“society … open itself up to conduct like this” and that a sentence of twenty years

would give him the opportunity for a life without diminishing the seriousness of

8 his actions. App’x 347-48. Accordingly, the district court did not procedurally err

when imposing the sentence.

We review the substantive reasonableness of a sentence “under a

‘deferential abuse-of-discretion standard,’” Cavera,

(quoting Gall v.

United States,

(2007)), recognizing that such review “provide[s] a

backstop for those few cases that, although procedurally correct, would

nonetheless damage the administration of justice because the sentence imposed

was shockingly high, shockingly low, or otherwise unsupportable as a matter of

law,” United States v. Rigas,

(2d Cir. 2009). Unsurprisingly, “it is

‘difficult to find that a below-Guidelines sentence is [substantively]

unreasonable.’” United States v. Rivernider,

(2d Cir. 2016) (quoting

United States v. Perez-Frias,

(2d Cir. 2011)). Here, given the gravity

of the offense, we conclude that Bhaskar’s below-Guidelines sentence of 240

months in prison was “within the range of permissible decisions available to the

district court.”

Bhaskar argues that his sentence creates an unwarranted disparity when

compared with sentences provided in other similar cases. But “concern about

unwarranted disparities is at a minimum when a sentence is within the Guidelines

9 range,” let alone below it. United States v. Irving,

(2d Cir. 2009)

(citation omitted). We therefore will not disturb Bhaskar’s sentence on the basis of

his having identified other defendants in other circumstances who received

different sentences.

IV

Lastly, Bhaskar argues that the district court failed to make the requisite

findings to impose a $5,000 assessment under the Justice for Victims of Trafficking

Act (“JVTA”). The JVTA provides that “the court shall assess an amount of $5,000

on any non-indigent person or entity convicted of an offense under chapter 117

(relating to transportation for illegal sexual activity and related crimes).”

(a)(4).

In United States v. Rosario,

(2d Cir. 2019), we remanded for

further proceedings because it was unclear from the record how the district court

arrived at its finding that the defendant was “non-indigent” and subject to the

JVTA assessment. We noted that “[w]hile the district court explicitly adopted the

Presentence Investigation Report (PSR), which had recommended the JVTA

assessment, the PSR contained no specific finding with respect to Rosario’s

indigency.”

. We further observed that “the non-imposition of fines may

10 not be determinative in establishing indigency under Section 3014(a),” and we

advised the district court, if it saw fit, to “further develop the record with regard

to Rosario’s present financial condition and his predicted earnings capacity.”

1

The government agrees that “[t]his case is indistinguishable from Rosario.”

Appellee’s Br. 27. Here, the PSR noted that Bhaskar did not have the ability to pay

a fine and did not make any finding in terms of non-indigency. Based on the

current record, it is unclear how the district court determined Bhaskar to be non-

indigent for purposes of the JVTA. Accordingly, the portion of the sentencing

order imposing the $5,000 fine is vacated, and we remand for the district court, if

it decides to do so, to re-impose the assessment under the JVTA upon a proper

finding of non-indigency. See Rosario, 785 F. App’x at 23. We affirm the remainder

of Bhaskar’s sentence.

1 On remand, the district court received new sentencing submissions from the parties and held a resentencing hearing, finding again that the defendant was “non-indigent” and imposing the $5,000 fine. When the case returned to this court, we held that “when determining whether a defendant is indigent pursuant to § 3014(a), a court may consider both the resources available to the defendant at the time of sentencing and the defendant’s future earning potential.” United States v. Rosario,

(2d Cir. 2021). We further held that the district court “did not clearly err in finding, after careful consideration of Rosario’s present financial position and likely future earnings, that Rosario is ‘non-indigent’ under section 3014(a).”

.

11 * * *

We have considered Bhaskar’s remaining arguments, which we conclude

are without merit. For the foregoing reasons, we AFFIRM IN PART and VACATE

IN PART the judgment of the district court.

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

12