21-1812 United States v. Davila

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

1 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 2 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 3 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN 4 CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE 5 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 6 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON 7 ANY PARTY NOT REPRESENTED BY COUNSEL.

8 At a stated term of the United States Court of Appeals for the Second Circuit, held at 9 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 10 on the 30th day of September, two thousand twenty-two.

11 PRESENT: 12 SUSAN L. CARNEY, 13 JOSEPH F. BIANCO, 14 ALISON J. NATHAN, 15 Circuit Judges. 16 _________________________________________

17 UNITED STATES OF AMERICA, 18 Appellee, 19 v. No. 21-1812 20 MATTHEW RIVERA, PAUL ARCE, AKA PABLO, 21 Defendants, 22 JOSEPH DAVILA, AKA SEALED DEFENDANT 1, AKA JOJO, 23 Defendant-Appellant. 24 _________________________________________

25 FOR APPELLANT: MICHAEL K. BACHRACH, Law Office of 26 Michael K. Bachrach, New York, NY.

27 FOR APPELLEE: THOMAS S. BURNETT (Karl Metzner, on the 28 brief), for Damian Williams, United States 29 Attorney for the Southern District of New 30 York, New York, NY. 1 Appeal from the United States District Court for the Southern District of New York 2 (Castel, J.).

3 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 4 ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED, 5 and the case is REMANDED for the limited purpose of entry of a corrected judgment.

6 Joseph Davila pleaded guilty, without agreement, to one count of conspiracy to 7 commit kidnapping and one count of substantive kidnapping. See

(a)(1), (c). 8 At Davila’s sentencing hearing, the United States District Court for the Southern District of 9 New York (Castel, J.) applied a downward variance to the relevant Guidelines range of 121 10 to 151 months’ imprisonment and announced a sentence principally of 106 months’ 11 imprisonment. The written judgment entered by the court, however, reflects a sentence 12 principally of 108 months’ imprisonment. On appeal, Davila challenges the substantive 13 reasonableness of his sentence. He and the government agree, in any event, that the case 14 must be remanded for entry of a corrected judgment. We assume the parties’ familiarity with 15 the underlying facts, procedural history, and arguments on appeal.

16 We review a sentence for substantive reasonableness under the “deferential abuse-of- 17 discretion standard,” Gall v. United States,

(2007), and will reverse “only in 18 exceptional cases” when the sentence “cannot be located within the range of permissible 19 decisions,” United States v. Cavera,

(2d Cir. 2008) (en banc). Although we 20 do not presume that the applicable Guidelines range is reasonable, “[i]n the overwhelming 21 majority of cases, a Guidelines sentence will fall comfortably within the broad range of 22 sentences that would be reasonable in the particular circumstances.” United States v. Perez- 23 Frias,

(2d Cir. 2011) (per curiam). It is particularly “difficult to find that a 24 below-Guidelines sentence is unreasonable.”

In assessing a sentence imposed by a district 25 court, we do not reweigh the relevant factors; rather, we evaluate only whether a factor “can 26 bear the weight assigned it under the totality of the circumstances.” United States v. Broxmeyer, 27

(2d Cir. 2012). 1 Davila contends that, in imposing a sentence of 106 months’ imprisonment, the 2 district court applied an insufficient downward variance to the relevant Guidelines range of 3 121 to 151 months’ imprisonment. Relying exclusively on the first

(a) 4 factor—“the nature and circumstances of the offense and the history and characteristics of 5 the defendant”—Davila argues that the district court placed disproportionate weight on 6 video recordings Davila and his co-conspirators made of the kidnapping and that the court 7 failed sufficiently to consider a variety of mitigating circumstances.

8 On abuse of discretion review, we identify no error in the district court’s assessment 9 of the first section 3553(a) factor. Although Davila may disagree with how the district court 10 weighed the seriousness of his criminal conduct as reflected in video recordings, which 11 provided clear and contemporaneous evidence of his crimes, “he can hardly show that his 12 criminal conduct was not sufficiently severe to bear the weight assigned it under the totality 13 of the circumstances.” United States v. Coppola,

(2d Cir. 2012). It is 14 undisputed that Davila and his co-conspirators physically abused their victim, including by 15 hitting him in the face with their hands, berating him as he stood naked against a wall, 16 forcing him to uncover his genitals while being filmed, wrapping an electrical cord around 17 his neck and making him walk on his hands and knees, and stomping on his neck and back. 18 Davila concedes that his victim “was frightened, bruised, and deeply humiliated,” that he 19 intended to “assault” or “teach [the victim] a lesson,” and that his actions are sufficient to 20 sustain a conviction for kidnapping under

(a). Appellant’s Br. 12, 14. The 21 district court fairly assigned great weight to the severity of Davila’s conduct as memorialized 22 in those video recordings.

23 Next, we reject Davila’s contention that mitigating factors required the district court 24 to apply a larger downward variance from the Guidelines range than the district court chose. 25 The district court considered each mitigating circumstance Davila now identifies for this 26 Court’s consideration: his upbringing, his familial support and strong family bonds, his 27 history of drug use, and his attempts to “turn his life around.”

at 15–21. Because of these 28 mitigating circumstances, especially “the significant efforts that [Davila] has made to clean 29 himself up and stay clean and sober, which are commendable,” J.A. at 82, the district court

3 1 imposed a below-Guidelines sentence. Davila does not contend that the district court failed 2 to consider or assigned inappropriate weight to any of these personal circumstances and fails 3 to explain why they justify a larger downward variance than the district court applied. The 4 district court thus reasonably considered both aggravating and mitigating circumstances. The 5 sentence that it chose for Davila “easily falls within the range of permissible decisions 6 available to the district court.” United States v. Rivernider,

(2d Cir. 2016).

7 Finally, as mentioned above, remand is nonetheless necessary because the written 8 judgment entered does not accurately reflect the judgment orally imposed at the sentencing 9 hearing: the court announced a sentence of 106 months’ imprisonment, whereas the written 10 judgment imposed a sentence of 108 months’ imprisonment. We have consistently held that 11 “[w]here there is a direct conflict between an unambiguous oral pronouncement of sentence 12 and the written judgment . . . the oral pronouncement, as correctly reported, must control.” 13 United States v. Carr,

(2d Cir. 2009) (omission in original). Accordingly, we 14 remand for entry of a corrected judgment of 106 months’ incarceration.

15 We have considered Davila’s remaining arguments and find in them no basis for 16 reversal. The judgment, as orally pronounced, is affirmed. This matter is remanded to the 17 district court for the limited purpose of allowing entry of a corrected written judgment.

18 FOR THE COURT:

19 Catherine O’Hagan Wolfe, Clerk of Court

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