14-436-cr
United States v. Jimenez
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
24th day of February, two thousand fifteen.
Present: Barrington D. Parker,
Peter W. Hall,
Debra Ann Livingston,
Circuit Judges,
____________________________________________________
United States of America,
Appellee,
v. No. 14-436-cr
Carlos Lorenzo Jimenez,
Defendant-Appellant.
____________________________________________________
FOR APPELLANT: JONATHAN I. EDELSTEIN, Edelstein & Grossman, New
York, NY.
FOR APPELLEE: NATHAN D. REILLY and DAVID C. JAMES, Assistant United
States Attorneys, for Loretta E. Lynch, United States
Attorney for the Eastern District of New York, Brooklyn,
NY.
_____________________________________________________
Appeal from the United States District Court for the Eastern District of New York
(Korman, J.).
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ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED and that the case is
REMANDED for the limited purpose of conforming the written judgment to the judgment
announced in court.
Defendant-Appellant Carlos Lorenzo Jimenez challenges the validity of his plea and the
reasonableness of his sentence. (Korman, J.). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review.
Jimenez’s contention that his plea colloquy was insufficient under Federal Rule of
Criminal Procedure 11 is without merit. Jimenez has failed to demonstrate that the district court
committed plain error, as he must because he neglected to raise the issue before the district court.
See United States v. Yang Chia Tien, 720 F.3d 464, 469 (2d Cir. 2013). Contrary to Jimenez’s
contention, the record does not show that the magistrate judge’s discussion of the potential
immigration consequences of his plea was affirmatively misleading. Even under Jimenez’s
interpretation of the colloquy, the magistrate judge accurately informed him that deportation was
a potential consequence of his plea. See Zhang v. United States, 506 F.3d 162, 168 (2d Cir.
2007) (“If the statements were accurate at the time they were made, then they could not
reasonably be said to be misleading and could not have rendered [defendant’s] guilty plea
involuntary.”). Moreover, other documents that Jimenez signed, and which were translated for
him, make clear that he was aware that deportation following a guilty plea was presumptively
mandatory and that he wished to plead guilty regardless. He, therefore, cannot demonstrate a
reasonable probability that but for the magistrate judge’s supposed error, he would not have
pleaded guilty. See United States v. Adams, 768 F.3d. 219, 223 (2d Cir. 2014) (“To satisfy the
plain error standard applicable in this case, however, the defendant must also establish ‘a
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reasonable probability that, but for the error, he would not have entered the plea.’” (quoting Yang
Chia Tien, 720 F.3d at 469)).
Jimenez has similarly failed to demonstrate that the district court abused its discretion
when it sentenced him to a term that included two years of supervised release. See United States
v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).1 While defendant may have preferred a
sentence that did not include any term of supervised release, the term imposed was three years
below the statutory minimum and at the very bottom of the guidelines range. It is clear from the
record that the district court considered all of the sentencing factors when reaching its decision
and a two-year term of supervised release is “‘within the range of permissible decisions’” based
on the facts of this case. Id. (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
All parties agree that, while the district court orally sentenced Jimenez to a two-year term
of supervised release, the written judgment incorrectly indicates a three-year term of supervised
release. A remand to correct the written judgment to impose the term announced at the time of
sentencing is therefore appropriate. See, e.g., United States v. Carr, 557 F.3d 93, 109–10 (2d
Cir. 2009).
We have considered Jimenez’s remaining arguments and find them to be without merit.
Accordingly, with the exception noted above regarding the written form of the judgment,
the judgment of the district court is AFFIRMED. This case is REMANDED to the District
Court, however, for the limited purpose of correcting the written judgment to conform it to the
judgment announced at the time of sentencing.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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Jimenez only challenges the substantive reasonableness of his sentence.
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