15-3680 (L)
United States v. Geraldo
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 TO 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 19th day of April, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. Nos. 15-3680(L)
15-3976(CON)
15-4042(CON)
MANUEL GERALDO, HARGELIS VARGAS, JUGO CESPEDES,
Defendants-Appellants,
LEONIDES SIERRA, AKA Sealed Defendant 1, AKA
Junito, AKA Junior, RICHARD GONZALEZ, AKA
Sealed Defendant 2, AKA Webb, AKA Webb Killa,
JOSE CRUZ, AKA Sealed Defendant 3, AKA Prostituto,
AKA Prosti, CARLOS URENA, AKA Sealed Defendant
4, AKA Salcedo, AKA White Boy, EDWIN CIRIACO,
Sealed Defendant 5, AKA Machete, AKA Bobie,
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ANIBAL RAMOS, AKA Sealed Defendant 6, AKA
Moreno, ALFRED LAFORD, AKA Sealed Defendant 7,
AKA Sony, ANTONIO PENA, AKA Sealed Defendant
8, AKA La Percha, JULIO BRITO, AKA Sealed
Defendant 9, AKA Fresh, JUAN NUNEZ, AKA Sealed
Defendant 10, AKA Jesu Christo, CHRISTOPHER
JOHNSON, AKA Sealed Defendant 11, AKA Chris,
DONALD NOVAS, AKA Sealed Defendant 12, AKA
Oliver, AKA Soca, AKA Vale, AKA Fish, JOSE
FELICIANO, AKA Sealed Defendant 13, AKA Lito,
FELIX LOPEZ-CABRERA, AKA Sealed Defendant 14,
AKA Suztancia, CARLOS LOPEZ, AKA Sealed
Defendant 15, AKA Carlito, JOSE MARMELEJOS,
AKA Sealed Defendant 16, AKA Ochenta, NOEL
ACOSTA-DISLA, AKA Sealed Defendant 17, AKA
Fugitivo, TOMAS CASTILLO, AKA Sealed Defendant
18, AKA Chobolo, AKA Chobolito, AKAHUGO
ALMONTE, AKA Sealed Defendant 19, AKA Fufu,
CESAR ALMONTE, AKA Sealed Defendant 20, AKA
Bullet, CARLONELL PAULINO, AKA Sealed
Defendant 21, AKA Pope, RONALD PERALTA, AKA
Sealed Defendant 22, AKA Romo, JOSE CASTILLO,
AKA Sealed Defendant 23, AKA Smith, AKA Jay
Blanco, AKA Daddy, MARK MARTINEZ, AKA Sealed
Defendant 24, JOSE BALLENILLA, AKA Sealed
Defendant 25, AKA Correa, LUIS BELTRAN, AKA
Sealed Defendant 26, AKA Gualey, LUIS CABRERA-
RECIO, AKA Sealed Defendant 27, AKA Nueve, AKA
Nuevecito, LOREN GUZMAN, AKA Sealed Defendant
28, AKA Crispy, MELVIN AMPARO, AKA Sealed
Defendant 29, AKA Flynt, JONATHAN MAJDANSKI,
AKA Sealed Defendant 30, AKA Indio, MIGUEL
STRONG, AKA Sealed Defendant 31, AKA Kiki, JOSE
BARCARER, AKA Sealed Defendant 32, AKA
Papotico, AKA Basura, JOSE GERONIMO-FIGUEROA,
AKA Sealed Defendant 33, AKA Mocha, EDGARDO
PONCE, AKA Sealed Defendant 34, AKA Tito,
MICHAEL DELACRUZ, AKA Sealed Defendant 35,
AKA 40, DAVID PATINO, AKA Sealed Defendant 36,
AKA Bori, AKA Chingo, EDUARDO HOLGUIN, AKA
Sealed Defendant 37, AKA James Baston, RONNY
EVANGELISTA, AKA Sealed Defendant 38, LUIS
CABRERA, AKA Sealed Defendant 39, AKA Bling
Bling, MR. CARLOS RODRIGUEZ, AKA Sealed
Defendant 40, HENRY O. PENA, AKA Sealed
Defendant 41, AKA Melmo, DAVE MCPHERSON,
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AKA Sealed Defendant 42, VANCE HILL, AKA Sealed
Defendant 43, AKA Shata, GREYDIN LIZ-CASTILLO,
AKA Sealed Defendant 44, AKA Pollito, NELSON
JORGE-MARTINEZ, AKA Sealed Defendant 45, AKA
Chico Chico, LUIS SALADIN, AKA Sealed Defendant
46, AKA King, CHRISTOPHER ROBLES, AKA Sealed
Defendant 47, AKA Dorita, JOSEPH HERNANDEZ,
AKA Sealed Defendant 48, JONATHAN
EVANGELISTA, AKA Sealed Defendant 49, HENRY
PAULINO, AKA Sealed Defendant 50, AKA Bam Bam,
JUAN FRANCO, LIMET VASQUEZ, ALEJANDRO
SORIANO, LENIN MOREL, RAMON LIZARDI,
LEWIS SANTOS, MIGUEL DELANCE, MARIA
MEJIA, JOSE MEJIA, JAVIER BELTRAN, MICHAEL
CABRERA, JULIAN LOPEZ, AKA Kulian Lopez,
CHRISTIAN NIEVES, YANDEL SILVERIO,
VLADAMIR DIAZ, ANDRY LAZALA, RAYMOND
SOSA, JOAN VASQUEZ, ARGENIS GUILLEN,
HERIBERTO MARTINEZ, ANDY CIPRIAN, ALBERT
SALCE, ANDERSON ABREU,
Defendants.
For Appellee United States: MATTHEW LAROCHE, Sarah Krissoff,
Margaret Garnett, Assistant United States
Attorneys, Of Counsel, for Joon H. Kim,
Acting United States Attorney for the
Southern District of New York, New York,
NY.
For Defendant-Appellant Manuel Geraldo: GARY S. VILLANUEVA, Law Office of Gary
S. Villanueva, New York, NY.
For Defendant-Appellant Hargelis Vargas: JOHN A. KUCHERA, Waco, TX.
For Defendant-Appellant Jugo Cespedes: JAMES M. BRANDEN, Law Office of James
M. Branden, New York, NY.
Consolidated appeals from final judgments of the United States District Court for the
Southern District of New York (Engelmayer, J.).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgments of the district court is AFFIRMED as to defendants-appellants
Geraldo and Cespedes, and REMANDED as to defendant-appellant Vargas.
Co-defendants-appellants Manuel Geraldo, Hargelis Vargas, and Jugo Cespedes
(collectively, “defendants”) appeal from sentences and final judgments of conviction entered on
October 30, 2015, November 25, 2015, and December 3, 2015, respectively, each by the United
States District Court for the Southern District of New York (Engelmayer, J.). We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
Each of the three defendants pleaded guilty to Count Two of the Superseding Indictment,
which charged them with participating in a racketeering conspiracy as members of the Bronx
Trinitarios Gang in violation of 18 U.S.C. § 1962(d). All three admitted that they participated in
the March 19, 2010, murder of Orlando Salgado; Geraldo and Cespedes also acknowledged
participating in the September 23, 2010, shooting and stabbing of members of a rival gang; and
Cespedes additionally admitted to participating in the March 27, 2010, murder of Richard
Canela. Prior to sentencing, the district court conducted a Fatico hearing, see United States v.
Fatico, 603 F.2d 1053 (2d Cir. 1979), to determine whether the Salgado murder constituted a
first- or second-degree murder for the purposes of calculating each defendant’s adjusted offense
level under the Guidelines. The court concluded that, while it was a close question, the murder of
Salgado was most appropriately considered a second-degree murder. In preparation for each
defendant’s sentencing hearing, the Probation Office calculated that all three defendants had
Criminal History Categories of I. In addition, the Probation Office calculated that Vargas’s total
offense level was 35 with a Guidelines range of 168 to 210 months’ imprisonment, and
Cespedes’s total offense level was 38 with a Guidelines range of 235 to 293 months. Although
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the Probation Office calculated that Geraldo’s total offense level was 36 with a Guidelines range
of 188 to 235 months, the court at sentencing found that Geraldo’s total offense level was 37
with a Guidelines range of 210 to 262 months, consistent with the parties’ stipulation regarding
the appropriate Guidelines calculation. On October 29, 2015, the court sentenced Geraldo
principally to 320 months’ imprisonment. On November 24, 2015, the court sentenced Vargas
principally to 210 months’ imprisonment. On December 2, 2015, the court sentenced Cespedes
principally to 420 months’ imprisonment. Each defendant has timely appealed his sentence.
On appeal, Geraldo contests both the procedural and the substantive reasonableness of his
sentence, while Cespedes contests only the substantive reasonableness of his sentence. We
review both the procedural and substantive reasonableness of a district court’s sentence for abuse
of discretion. See United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008).
Vargas’s appeal is more complicated. In the course of challenging his sentence on appeal,
Vargas has raised a serious question as to whether the district court properly exercised subject-
matter jurisdiction over his case. In fairness to the district court — which at all times conducted
proceedings with great care and thoroughness — we note that this issue was first raised in
Vargas’s Reply Brief on appeal. Parties may not waive subject matter jurisdiction, however, so
“it is our obligation to raise the matter of subject matter jurisdiction ‘whenever it appears from
the pleadings or otherwise that jurisdiction is lacking.’” Durant, Nichols, Houston, Hodgson &
Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 63 (2d Cir. 2009) (quoting John Birch Soc’y v. Nat’l
Broad. Co., 377 F.2d 194, 199 (2d Cir. 1967)). Accordingly, we must first be assured that the
district court properly exercised jurisdiction over Vargas’s case before the considering merits of
his appeal.
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I. Geraldo’s Procedural Unreasonableness Challenge
As to Geraldo’s procedural unreasonableness claim, a district court commits procedural
error when, among other things, it “fails to consider the [18 U.S.C.] § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.”
United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (per curiam) (internal quotation marks
omitted). In addition, the sentencing judge must “state in open court the reasons for its
imposition of [a] particular sentence.” 18 U.S.C. § 3553(c). Geraldo argues on appeal that “the
sentencing court refused to consider appellant’s persistent disability and, more importantly, its
impairment of his judgment.” Geraldo Br. 22. Contrary to Geraldo’s contention, the sentencing
judge did consider and discuss the significance of Geraldo’s learning disability. He noted that
“some degree of ADHD and related learning disabilities” were among the “real challenges in
[Geraldo’s] life” that provided “valuable context. . . . [that] helps me understand why [Geraldo]
joined the gang.” Geraldo App. 280–81. However, the sentencing judge found that those factors
were outweighed by the “seriousness of [Geraldo’s] offense, the savage murder of an innocent
man, followed not by refraining from violence, but by other acts of violence including an
attempted murder in which [he] did the stabbing.” Id. at 284. The sentencing judge carefully
considered the factors set forth in Section 3553(a) in the court’s sentencing explanation, which
spans over fifteen pages of the hearing transcript. On these bases, we conclude that Geraldo’s
sentence was not procedurally unreasonable.
II. Geraldo’s and Cespedes’s Substantive Unreasonableness Challenge
Both Geraldo and Cespedes also argue that their sentences were substantively
unreasonable. Vacating a sentence on appeal because it was substantively unreasonable is
appropriate “only in exceptional cases where the trial court’s decision ‘cannot be located within
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the range of permissible decisions.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)
(en banc) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). In imposing an
above-Guidelines sentence, the trial court “must consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree of the variance. . . . [A]
major departure should be supported by a more significant justification than a minor one.” Gall
v. United States, 552 U.S. 38, 50 (2007).
As to the substantive reasonableness of Geraldo’s sentence, Geraldo argues that the
sentencing court’s “proffered justifications for its disproportionate variance are either
unsupported by the record or insufficient to locate the case outside the heartland.” Geraldo Br.
26. In the sentencing judge’s Fatico opinion, however, the judge found by a preponderance of
the evidence that the Salgado murder was “brutal” and “plainly indicative of a premeditated
attack,” that Geraldo had participated in murdering Salgado, and that Geraldo had subsequently
boasted to others that he had stabbed Salgado to death. Geraldo App. 95. Although the
sentencing judge acknowledged that the deterrent benefit of incapacitation “somewhat
diminishes the older [Geraldo] get[s],” Geraldo App. 280, the judge also recognized that Geraldo
“kept on committing acts of violence,” despite being “well aware that [he] could get caught,
arrested and prosecuted,” as “other members of the gang” were “getting arrested and going to
prison, but [he] kept on going.” Geraldo App. 278. Given the very serious nature of the violent
acts Geraldo admitted to committing as part of the racketeering conspiracy, Geraldo’s sentence
cannot be said to be substantively unreasonable.
Neither was Cespedes’s sentence substantively unreasonable. On appeal, Cespedes
primarily argues that the sentencing judge’s above-Guidelines sentence was the result of
improperly using as the “closest comparators” to Cespedes two co-defendants who were tried
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and convicted of multiple murders and who received mandatory life sentences, instead of using
Geraldo, whom Cespedes contends was more properly his closest comparator. However, the
sentencing judge rightly recognized the crucial difference between the activities of Geraldo and
Cespedes, insofar as the latter admitted to participating in a second murder only eight days after
the Salgado murder. The second victim, Canela, was murdered essentially because Cespedes and
other gang members “did not like the way a man . . . standing outside [a] store was looking at
them, and so they approached him and started assaulting him.” Cespedes App. 281 (quoting
Cespedes PSR ¶ 101). Indeed, Cespedes stabbed the victim to death with such force that the
blade of his knife broke from the handle in the process, and the victim was later found to have
died from approximately ten stab wounds. In light of these findings and the mandatory life
sentences imposed for the only other Trinitarios co-defendants to have been found responsible
for multiple murders at the time of Cespedes’s sentencing, Cespedes’s above-Guidelines
sentence cannot be said to be substantively unreasonable.
Cespedes also contends that his sentence is unreasonable because the district court
improperly based his sentence on a disagreement concerning how the Guidelines’ grouping rules
would count the Canela murder. Although Cespedes purports to challenge the substantive
reasonableness of his sentence on this basis, such an argument is typically one of procedural
unreasonableness. See, e.g., United States v. Natal, 849 F.3d 530, 539 (2d Cir. 2017). In
sentencing Cespedes, the district court varied upward in its sentence in part because the Canela
murder added only one offense level to the Guidelines calculation. In the sentencing judge’s
view, that minor increase was insufficient to account for the fact that Cespedes committed a
second murder very shortly after participating in the murder of Salgado. This amounts to a policy
disagreement with the Guidelines, which is an appropriate reason to vary up or down from the
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Guidelines recommendation. See Kimbrough v. United States, 552 U.S. 85, 101 (2007). Here, the
sentencing judge carefully described his policy disagreement with the grouping rules and amply
justified his reasons for finding the Guidelines recommendation insufficient on the facts of this
case.
III. Federal Subject Matter Jurisdiction over Vargas’s Case
Finally, in Vargas’s Reply brief, Vargas contends that the only predicate acts in the
record that establish Vargas’s membership in the racketeering conspiracy — his participation in
the Salgado murder and his acknowledgment of his awareness that some members of the
Trinitarios gang sold drugs — both took place while he was a juvenile. If so, there is a serious
question as to whether the district court properly exercised subject matter jurisdiction over his
case, for the only predicate acts that establish Vargas’s membership in the racketeering
conspiracy would be acts of juvenile delinquency under the Juvenile Delinquency Act (“JDA”).
See 18 U.S.C. § 5031. “[I]n cases where a defendant commits a crime before his or her
eighteenth birthday and is under twenty-one at the time the juvenile information charging the
crime is filed,” the JDA requires either that the defendant’s prosecution proceed as a juvenile
prosecution — with a much attenuated regime of punishment — or that the district court
formally transfer a juvenile defendant to adult status. United States v. Ramirez, 297 F.3d 185,
191 (2d Cir. 2002). Even where the defendant turns twenty-one during the pendency of the
criminal proceedings, we have held that the JDA continues to apply. Id. at 191–92.
Because Vargas was under the age of twenty-one at the time he was charged with the
racketeering conspiracy, if Vargas’s plea did not establish his adult participation in the
racketeering conspiracy, the district court would be required to comply with the JDA to exercise
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jurisdiction over Vargas’s case. As to that procedure, as we explained at length in United States
v. Wong,
an act of juvenile delinquency may not be prosecuted in a federal
district court unless the Attorney General certifies to the court that:
(1) state courts either do not have or refuse to assume jurisdiction
over the juvenile; (2) the state does not have ‘available programs
and services adequate for the needs of juveniles;’ or (3) the offense
charged is a violent felony, or is one of several enumerated
narcotics- and firearm-related offenses, and there is a substantial
federal interest in the case or the offense to warrant the exercise of
federal jurisdiction.
40 F.3d 1347, 1363 (2d Cir. 1994) (citing 18 U.S.C. § 5032).1 When questioned at oral argument,
the Government did not assert that the Attorney General had fulfilled any of those prerequisites
to exercising jurisdiction, and neither we nor defense counsel could locate anything in the
appellate record suggesting otherwise. See Oral Arg. at 13:15.
Here, the absence of the required certifications does not necessarily end the jurisdictional
inquiry, however, because racketeering conspiracy is a continuing crime. As we recognized in
Wong, “federal courts have jurisdiction over conspiracies begun while a defendant was a minor
but completed after his eighteenth birthday.” 40 F.3d at 1365. Nevertheless, the difficulty here is
that the record does not clearly establish that Vargas ratified the racketeering conspiracy after his
eighteenth birthday, on August 2, 2010. At Vargas’s plea hearing, Vargas only admitted to the
predicate acts of participating in the murder of Salgado on March 19, 2010, and that “[i]n March
2010, [he] was associated with the Bronx Trinitarios gang,” and affirmed that he was “aware of
the gang’s activities selling drugs,” specifically marijuana. Vargas Plea Hr’g 19–20. Although
Vargas’s PSR suggests that he may have been involved in burglaries with members of the
1
Even in cases where the Attorney General submits this required certification, which confers jurisdiction upon the
district court, the government may only proceed against the defendant as an adult (instead of as a juvenile who is
entitled to additional procedural protections under the JDA) when the government moves to transfer the juvenile to
adult status, which can be either mandatory or discretionary depending on the circumstances. See Ramirez, 297 F.3d
at 191.
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Trinitarios gang as late as 2012 (well after his eighteenth birthday), defense counsel objected to
the inclusion of those crimes in the PSR, see Vargas PSR at 35, and as Vargas’s counsel noted
during oral argument, no documentation in the record on appeal supports Vargas’s involvement
in those crimes, and they were not included in the criminal history portion of Vargas’s PSR. See
Oral Arg. at 17:10; Vargas PSR ¶¶ 148–55. Moreover, the district court did not make any
specific findings concerning the 2012 burglaries. For these reasons, the existing record on appeal
does not permit us to conclude, based solely on the references in the PSR, that the alleged
burglaries establish Vargas’s continued participation in the conspiracy after turning eighteen.
However, we are not prepared to assume that Vargas’s continued membership in the
criminal enterprise may only be established by the commission of additional crimes after
reaching the age of majority. A defendant’s criminal liability for racketeering conspiracy does
not depend on the commission of a predicate criminal act, see Salinas v. United States, 522 U.S.
52, 63–66 (1997), and a defendant’s participation in a conspiracy is generally held to continue
until the conspiracy ends or the defendant affirmatively withdraws from it, see United States v.
Salmonese, 352 F.3d 608, 615 (2d Cir. 2003). At this juncture, however, we express no view as
to whether those rules apply in the context of adult ratification of juvenile participation in a
conspiracy, for we are not in a position to determine on the basis of the present record whether
jurisdiction existed in this case on the theory that Vargas’s participation in the charged
conspiracy continued into his majority.
At this stage we believe this issue is best resolved by means of what is known in this
Circuit as a Jacobson remand, in which we remand “partial jurisdiction to the district court to
supplement the record on a discrete factual or legal issue while retaining jurisdiction over the
original appeal.” Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v.
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Pemex–Exploración Y Producción, 832 F.3d 92, 115 (2d Cir. 2016); see also United States v.
Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) (recognizing the authority of federal appellate courts to
seek “supplementation of a record without a formal remand or the need for a new notice of
appeal before the appellate panel acts on the supplemental record”). We direct the district court
to take the necessary steps, which may include a hearing, to determine whether it properly had
and retained jurisdiction over Vargas’s case under the JDA. If the district court does not find by a
preponderance of the evidence that Vargas’s participation in the charged conspiracy continued
after he turned eighteen, we direct the district court to vacate his conviction without prejudice for
lack of federal jurisdiction. See United States v. Ceja-Prado, 333 F.3d 1046, 1051–52 (9th Cir.
2003).
We have considered all of Geraldo’s and Cespedes’s contentions on appeal and have
found in them no basis for reversal. We have also considered Vargas’s contention that his plea
allocution violated Federal Rule of Criminal Procedure 11, and similarly find that argument to be
without merit. For the reasons stated herein, the sentencing judgments of the district court as to
Geraldo and Cespedes are AFFIRMED. As to Vargas’s appeal, his sentence is REMANDED to
the district court pursuant to Jacobson, with instructions to take the necessary steps, which may
include a hearing, to determine whether it had and retained jurisdiction over Vargas’s case under
the Juvenile Delinquency Act. Upon resolution of that issue by the district court, either party
may restore the matter to the active docket of this Court by letter, without filing a new notice of
appeal. In the event either party seeks further action from this Court, the matter will be referred
to this panel.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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