20-3195 United States v. Vasquez-Drew

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 2nd day of March, two thousand twenty-three. Present: GUIDO CALABRESI, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 20-3195 PERCY ARTURO VASQUEZ-DREW, AKA SEALED DEFENDANT 1,

Defendant-Appellant,

OSVALDO LONDONO-VANEGAS, AKA SEALED DEFENDANT 2, VICTOR ROJAS- BASCOPE,

Defendants. 1 _____________________________________

For Appellee: SAM ADELSBERG (Matthew Hellman, David Robles, & Won S. Shin, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY. 1 The Clerk of Court is directed to amend the caption as above.

1 For Defendant-Appellant: MATTHEW B. LARSEN, Federal Defenders of New York, New York, NY.

As Amicus Curiae: TADHG DOOLEY (Emmett Gilles, on the brief), Wiggin and Dana LLP, New Haven, CT.

For the Plurinational State of Bolivia Marcus A. R. Childress, Jenner & Block LLP, as Amicus Curiae: Washington, DC (Nicole R. Allicock, Jenner & Block LLP, Washington, DC; Anthony S. Barkow, Brian J. Fischer, Adina Hemley-Bronstein, Jenner & Block LLP, New York, NY, on the brief).

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

New York (Denise L. Cote, Judge).

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

DECREED that the judgment of the district court entered on September 11, 2020, is VACATED

and REMANDED for resentencing by a different district judge.

Percy Arturo Vasquez-Drew appeals from a judgment of the United States District Court

for the Southern District of New York (Denise L. Cote, Judge) convicting him, upon a guilty plea,

of one count of conspiring to import narcotics into the United States in violation of

, 959(a), 959(d), 960(a)(3), and 960(b)(1)(B)(ii) and sentencing him to 120 months’

imprisonment. We assume the parties’ familiarity with the case.

Vasquez argues, and the government agrees, that his sentence should be vacated because a

reasonable observer could interpret the district court’s comments at sentencing to suggest that the

court improperly relied on his Bolivian nationality in determining punishment. Because the

government supports vacatur, we appointed Tadhg Dooley to defend the judgment below as

amicus curiae. He has ably discharged his duties, and the Court thanks him for his service.

At sentencing, the district court, noting that the undisputed facts suggested that Vasquez

had taken part in “a very significant crime,” said that it was “going to impose a very long sentence

2 on the defendant, principally motivated by concerns about appropriate punishment, but also

general deterrence.” App’x 53. “It is important,” the court continued, “that the people in Bolivia

understand the kind of sentences that are potentially imposed here from engagement in activity to

send cocaine into America.” App’x 53.

“It has long been settled in this Circuit that although reference to national origin and

naturalized status is permissible during sentencing, it is allowed only so long as it does not become

the basis for determining the sentence.” United States v. Kaba,

(2d Cir. 2007)

(cleaned up). We review de novo “whether the district court improperly considered the defendant’s

national origin.”

at 156–57. “[E]ven the appearance that the sentence reflects a defendant’s

race or nationality will ordinarily require a remand for resentencing.”

at 156 (quoting United

States v. Leung,

(2d Cir. 1994)).

In this case, we are confident, as all the parties agreed, that the experienced district judge

harbored no actual bias against Vasquez based on his nationality. At the sentencing hearing, the

government described Vasquez as part of “a network of military officials, airport security officials,

and others” in Bolivia who worked together to send cocaine to the United States. App’x 44. It

urged the court to demonstrate to “the defendant and others similarly situated” that drug dealers

“who sell such poison from afar by lining the pockets of corrupt officials along the way will face

significant consequences if and when they are caught.” App’x 44. The district court’s reference

to “the people in Bolivia” followed that request and may well have been intended to refer

specifically to Vasquez’s fellow conspirators. App’x 53.

Even so, our precedents constrain us to conclude that there is “a sufficient risk that a

reasonable observer, hearing or reading” the district court’s remarks, “might infer, however

incorrectly” that Vasquez’s nationality played a role in determining his sentence. Leung,

3 at 586–87. Although we are confident that the district court could properly resentence Vasquez

on remand, the appearance of justice will be better satisfied by following our usual practice and

assigning the resentencing to a different judge. See Kaba,

.

We therefore VACATE Vasquez’s sentence and REMAND for further proceedings

consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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