18‐137‐cr
United States v. Castillo
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 5th day of March, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
RICHARD J. SULLIVAN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 18‐137‐cr
GERALDO CASTILLO, AKA LACOTO COSTELLO,
AKA CASTELLO LACOTO, AKA GERARDO
CASTILLO‐VILLEGAS, AKA GERARDO CASTILLO,
AKA GERALDO CASTILLA, AKA LAZARO
CASTILLO,
Defendant‐Appellant.
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FOR APPELLEE: ALINE R. FLODR, Assistant United States
Attorney (Anna M. Skotko, Assistant United
States Attorney, on the brief), for Geoffrey S.
Berman, United States Attorney for the
Southern District of New York, New York,
New York.
FOR DEFENDANT‐APPELLANT: PAUL J. ANGIOLETTI, Law Office of Paul J.
Angioletti, Staten Island, New York.
Appeal from the United States District Court for the Southern District of
New York (Castel, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Geraldo Castillo appeals from a judgment entered
January 5, 2018, convicting him, following a guilty plea, of illegally reentering the
United States after a conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). Castillo had been deported on three prior occasions: in 2007
following a federal firearm possession conviction and a state court bail jumping
conviction, in 2008 following an attempted illegal reentry, and in 2013 following
convictions for the criminal sale of marijuana and illegal reentry.1 With a criminal
history category of IV, Castilloʹs sentencing range under the United States Sentencing
Guidelines (the ʺGuidelinesʺ) for the present illegal reentry charge was 37 to 46 months,
based, in part, on an 8‐level increase, pursuant to U.S.S.G. § 2L1.2(b)(2)(B), because
Castilloʹs 2006 bail jumping conviction constituted a felony offense for which the
1 While the Presentence Investigation Report is unclear as to which convictions underlie
each of Castilloʹs three removals, this uncertainty has no bearing on our analysis.
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sentence imposed exceeded two years. Concluding that Castilloʹs continuing recidivism
reflected a lack of respect for the law and a need for specific deterrence, the district
court sentenced Castillo to 46 monthsʹ imprisonment. We assume the partiesʹ
familiarity with the underlying facts, procedural history, and issues on appeal.
On appeal, Castillo challenges only the substantive reasonableness of his
sentence, which we review under a ʺparticularly deferentialʺ abuse‐of‐discretion
standard. United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (citation omitted).
Castillo did not object to his sentence or the recommended Guidelines range below, but
we have not yet decided whether plain error review applies to unpreserved claims of
substantive error. See United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014). We
need not resolve that issue here because, regardless of the standard of review, Castilloʹs
challenge fails on the merits.
ʺWe will identify as substantively unreasonable only those sentences that
are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law
that allowing them to stand would damage the administration of justice.ʺ Singh, 877
F.3d at 115 (citation and internal quotation marks omitted). Castilloʹs sentence of 46
monthsʹ imprisonment was not substantively unreasonable. First, Castillo was
sentenced within (albeit at the top of) the Guidelines range, and he did not challenge
the reasonableness of the Guidelines range below. Second, Castillo was in Criminal
History Category IV, he had five prior convictions, including for firearms possession
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and selling drugs, and he had already been deported three times before. Third, Castillo
was previously sentenced to 36 monthsʹ imprisonment for his most recent conviction for
illegal reentry in 2010, so it was entirely reasonable for Judge Castel to conclude that a
greater sentence was necessary to deter Castillo from attempting to illegally reenter the
country a fourth time. In these circumstances, a sentence of 46 months fell well within
the range of permissible sentences.
Castillo makes a number of specific arguments, none of which are
persuasive. First, Castillo argues that his 2006 bail jumping conviction unreasonably
increased his offense level by eight points, as the conduct underlying the conviction
occurred sixteen years prior to the instant offense. Castillo principally relies on United
States v. Amezcua‐Vasquez, an out‐of‐circuit case which held that use of a 25‐year‐old
conviction to trigger a 16‐level enhancement pursuant to U.S.S.G. § 2L1.2(b) rendered
the defendantʹs within‐Guidelines sentence substantively unreasonable when the
conviction was ʺstaleʺ and his subsequent history showed no convictions for harming
others. 567 F.3d 1050, 1055‐56 (9th Cir. 2009). Unlike the conviction in Amezcua‐Vasquez,
however, Castilloʹs predicate conviction was recent enough to be included in the
calculation of his criminal history points and thus is not stale, even if the conduct
underlying that predicate conviction took place more than fifteen years prior to the
instant offense. See U.S.S.G. § 4A1.1 cmt. n.1 (excluding convictions imposed fifteen
years prior to a defendantʹs commencement of the instant offense from a defendantʹs
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criminal history calculation); see also Amezcua‐Vasquez, 567 F.3d at 1054‐55. Moreover,
Castillo was convicted of subsequent crimes, including possession of a gun.
Second, Castillo contends that his bail jumping conviction should not
increase both his offense level and his criminal history category level because of the lack
of a ʺfactual nexusʺ between the 2006 conviction and the instant reentry offense. This
Court has held, however, ʺthat a district court does not err when it uses a prior offense
to calculate both the offense level and the criminal history category to determine the
correct Guidelines range in unlawful reentry cases,ʺ regardless of the remoteness
between the enhancement triggering conviction and the present illegal reentry. United
States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006) (using a 1998 robbery conviction to
enhance defendantʹs criminal history category and base offense level in connection with
defendantʹs 2005 sentencing for illegal reentry); see also U.S.S.G. § 2L1.2 cmt. n.3
(permitting a conviction to increase both a defendantʹs criminal history level and
offense level).
Finally, Castillo asserts that his sentence was substantively unreasonable
in light of various mitigating factors including: the minor nature of his criminal record,
his impoverished childhood, his good work ethic, and the difficulties he faced upon
returning to Mexico after the previous deportations. The record, however,
demonstrates that the district court considered all the 18 U.S.C. § 3553(a) factors,
acknowledged Castilloʹs difficult upbringing and other concerns, but ultimately
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concluded that his criminal history warranted a sentence greater than the bottom‐of‐
the‐Guidelines 37 monthsʹ imprisonment recommended by the probation department
and advocated by his counsel. Therefore, under these circumstances, Castillo has failed
to meet his ʺheavy burdenʺ of demonstrating that his sentence is substantively
unreasonable. See United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012).
* * *
We have considered Castilloʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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