09-4630-cr
United States v. Lasaga
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 20th day of October, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 WILFRED FEINBERG,
9 Circuit Judge.*
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12 United States of America,
13 Appellee,
14
15 -v.- 09-4630-cr
16
17 Antonio Lasaga,
18 Defendant-Appellant.
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21
*
Because the Honorable José A. Cabranes recused
himself prior to oral argument, this appeal is being decided
by the remaining two members of the panel pursuant to Second
Circuit Internal Operating Procedure E(b).
1
1 APPEARING FOR APPELLANT: Diane Polan (S. Max Simmons, on
2 the brief), Law Offices of Diane
3 Polan, LLC, New Haven, CT.
4
5 APPEARING FOR APPELLEE: Jonathan S. Freimann, Assistant
6 United States Attorney (Deirdre
7 Daly, Acting United States
8 Attorney, and Robert M. Spector,
9 Assistant United States
10 Attorney, District of
11 Connecticut, on the brief).
12
13 Appeal from a judgment of the United States District
14 Court for the District of Connecticut (Thompson, J.).
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the judgment of the district court be
17 AFFIRMED.
18 Defendant-Appellant Antonio Lasaga (“Lasaga”) appeals
19 from a judgment of the United States District Court for the
20 District of Connecticut (Thompson, J.), entered on October
21 23, 2009 (the “Order”), refusing by written decision to
22 resentence Lasaga. The judgment follows this Court’s remand
23 in United States v. Lasaga, 136 F. App’x 428 (2d Cir. 2005),
24 which was issued in light of United States v. Booker, 543
25 U.S. 220 (2005) and United States v. Crosby, 397 F.3d 103
26 (2d Cir. 2005). We assume the parties’ familiarity with the
27 underlying facts, the procedural history, and the issues
28 presented for review.
29 This case returns to us for a third time following the
30 decisions of this Court in United States v. Lasaga, 328 F.3d
31 61 (2d Cir. 2003) (Lasaga I), which remanded for further
32 factual findings with respect to the district court’s upward
33 departure on the basis of psychological harm to a minor
34 victim, and United States v. Lasaga, 136 F. App’x 428 (2d
35 Cir. 2005) (Lasaga II), which remanded for a determination
36 whether resentencing was necessary in light of this Court’s
37 decision in Crosby and instructed the district court to
38 reconsider the criminal history departure “in light of the
39 Supreme Court’s recent decision in Shepard v. United States,
40 544 U.S. 13 (2005) . . . and . . . Williams v. United
41 States, 503 U.S. 193, 201 (1992) . . . .” Lasaga II, 136 F.
42 App’x at 433.
2
1 On remand, the district court solicited and received
2 resentencing memoranda from the government and Lasaga, and
3 concluded that it would not have imposed a different
4 sentence had the Sentencing Guidelines been advisory at the
5 time the sentence was imposed. In so doing, the district
6 court rejected Lasaga’s argument that the court could not
7 enhance the sentence on any basis other than facts admitted
8 by Lasaga or proved to a jury beyond a reasonable doubt; and
9 the court observed that it had already considered all of the
10 mitigating factors set forth in Lasaga’s resentencing
11 memorandum at each of the prior sentencing hearings. With
12 respect to this Court’s instruction concerning the criminal
13 history departure, the district court advised: “Assuming
14 arguendo a Criminal History of Category I, the resulting
15 range under the Sentencing Guidelines is 151 months to 188
16 months, which encompasses the sentence the court continues
17 to view as being the appropriate sentence. Therefore the
18 court need not address the issues of departure to Criminal
19 History II.” United States v. Lasaga, No. 99 cr 122(AWT),
20 Slip Op. at 3-4 (D. Conn. Oct. 23, 2009).
21 In the current appeal, Lasaga cites the district
22 court’s discussion as to whether it would impose the same
23 sentence even without a one-level criminal history
24 enhancement. Lasaga argues that, by recalculating the
25 guideline range, the district court sentenced Lasaga de novo
26 without the benefit of a sentencing hearing and in violation
27 of Fed. R. Crim. P. 32.
28 We review a sentence for reasonableness even after a
29 district court declines to resentence pursuant to Crosby.
30 United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007).
31 The reasonableness review contemplated by Booker requires
32 “consideration not only of the sentence itself, but also of
33 the procedures employed in arriving at the sentence.”
34 United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006).
35 Reasonableness review is “akin to review for abuse of
36 discretion,” which asks “whether the sentencing judge
37 ‘exceeded the bounds of allowable discretion[,] . . .
38 committed an error of law in the course of exercising
39 discretion, or made a clearly erroneous finding of fact.’”
40 Id. at 27 (quoting Crosby, 397 F.3d at 114).
41 Lasaga’s primary appellate contention, that the court
42 in effect imposed a new sentence, does not take into account
43 the district court’s limited obligations in response to a
44 Crosby remand. First, district courts “should obtain the
3
1 views of counsel, at least in writing, but ‘need not’
2 require the presence of the Defendant.” Crosby, 397 F.3d at
3 120 (citation omitted). Next, “[u]pon reaching its decision
4 (with or without a hearing) whether to resentence, the
5 district court should either place on the record a decision
6 not to resentence, with an appropriate explanation, or
7 vacate the sentence and, with the Defendant present,
8 resentence in conformity with the [Sentencing Reform Act of
9 1984], [Booker], and [Crosby], including an appropriate
10 explanation.” Id. (citation omitted). Here, the district
11 fulfilled both obligations. Specifically, in deciding not
12 to resentence Lasaga, the district court explained that it
13 had, on two prior occasions, considered all of factors set
14 forth in 18 U.S.C. § 3553(a), together with the mitigating
15 factors set forth in Lasaga’s sentencing memoranda, and
16 concluded that 180 months’ imprisonment was an appropriate
17 sentence.
18 The district court’s discussion of Lasaga’s criminal
19 history did not amount to a de novo sentence; rather, it was
20 an acknowledgment that the criminal history departure would
21 have had no impact on the sentencing, given that either
22 guideline range would have encompassed Lasaga’s ultimate
23 sentence of 180 months.1 Accordingly, because “the record
24 indicates clearly that the district court would have imposed
25 the same sentence” regardless of whether or not the upward
26 departure applies, any claimed error (assuming that there
27 was error), “may be deemed harmless.” United States v. Jass,
28 569 F.3d 47, 69 (2d Cir. 2009) (internal quotation marks
29 omitted). “As long as the sentencing judge is satisfied
30 that the same sentence would have been imposed no matter
31 which of the two guideline ranges applies, the sentence
32 should stand.” United States v. Bermingham, 855 F.2d 925,
33 934 (2d Cir. 1988).
34 Having affirmed the district court’s judgment, we DENY
35 as moot Lasaga’s motion to hold the appeal in abeyance
36 pending the Supreme Court’s decision in Pepper v. United
1
Following this Court’s remand in Lasaga I, the
district court calculated Lasaga’s offense conduct level to
be 34 and his criminal history category to be level II. The
corresponding sentencing range was 168 months to 210 months.
Assuming an offense conduct level of 34 and a criminal
history category of level I, the sentencing range would be
151 months to 188 months.
4
1 States, 130 S. Ct. 3499 (2010). Finding no merit in
2 Lasaga’s remaining arguments, we hereby AFFIRM the district
3 court’s judgment.
4
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
8
9
5