United States v. Carrasco

12-1954-cr United States v. Carrasco 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 20th day of March, two thousand and thirteen. 5 6 PRESENT: JOHN M. WALKER, JR., 7 RICHARD C. WESLEY, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges, 10 11 12 13 UNITED STATES OF AMERICA, 14 15 Appellee, 16 17 v. 12-1954 18 19 MANUEL CARRASCO, 20 21 Defendant-Appellant. 22 23 24 FOR APPELLANT: James F. Greenwald, Assistant Federal 25 Public Defender, James P. Egan, Research 26 & Writing Attorney, for Lisa A. Peebles, 27 Federal Public Defender for the Northern 28 District of New York, Syracuse, NY. 29 30 FOR APPELLEE: Carl G. Eurenius, Assistant United States 31 Attorney, Elizabeth S. Riker, Assistant 32 United States Attorney, for Richard S. 33 Hartunian, United States Attorney for the 34 Northern District of New York, Syracuse, 35 NY. 1 Appeal from the United States District Court for the 2 Northern District of New York (Suddaby, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the United States District 6 Court for the Northern District of New York is AFFIRMED. 7 Defendant-Appellant Manuel Carrasco-Mateo (“Carrasco”) 8 appeals from a judgment by the United States District Court 9 for the Northern District of New York (Suddaby, J.), 10 sentencing him to 56 months’ imprisonment for illegal re- 11 entry. We assume the parties’ familiarity with the 12 underlying facts, the procedural history, and the issues 13 presented for review. 14 We apply a “‘deferential abuse-of-discretion standard’” 15 in reviewing sentences for procedural and substantive 16 unreasonableness. See United States v. Pope, 554 F.3d 240, 17 244 (2d Cir. 2009) (quoting Gall v. United States, 552 U.S. 18 38, 52 (2007)). We will find procedural error when, inter 19 alia, a district court “rests its sentence on a clearly 20 erroneous finding of fact” or “fails adequately to explain 21 its chosen sentence” – particularly if the court departs 22 from the Guidelines range. United States v. Cavera, 550 23 F.3d 180, 190 (2d Cir. 2008) (en banc). We will set aside a 2 1 district court’s sentence for substantive unreasonableness 2 “only in exceptional cases where the trial court’s decision 3 ‘cannot be located within the range of permissible 4 decisions.’” Id. at 189 (quoting United States v. Rigas, 5 490 F.3d 208, 238 (2d Cir. 2007)). 6 Here, we find that the district court did not abuse its 7 discretion in imposing a sentence toward the top end of the 8 Guidelines range of 46-57 months. Carrasco argues that the 9 district court committed procedural error by relying on 10 unproven elements of a pending state charge. “A sentencing 11 court is not limited to considering only evidence of the 12 convicted offense [and] may take into account other relevant 13 conduct.” United States v. Juwa, 508 F.3d 694, 700 (2d Cir. 14 2007). We recognize, however, that “facts relevant to 15 sentencing must be found by a preponderance of the 16 evidence,” and that “an indictment or a charge within an 17 indictment, standing alone and without independent 18 substantiation, cannot be the basis upon which a criminal 19 punishment is imposed.” Id. at 701. In imposing its 20 sentence, the court supported its reasoning that Carrasco 21 “ha[dn’t] gotten the message” by referencing the pending 22 action, specifically, “the fact that there’s a conflict 3 1 where the police have to be called,” and the “severity” of 2 an “altercation . . . with a weapon.” 3 Certain aspects of the conduct leading to the state 4 arrest were undisputed. To the extent that the district 5 court may have considered aspects of the pending charges 6 that were not proven by a preponderance of the evidence, the 7 court committed procedural error; however, any error was 8 harmless. See Fed. R. Crim. P. 52(a); United States v. 9 Mason, 692 F.3d 178, 184 (2d Cir. 2012). Carrasco’s 10 sentence fell within the expected range. The court could 11 have considered Carrasco’s evasion of police to be 12 sufficiently serious, or even found the case completely 13 typical, and still sentenced Carrasco to 56 months. See 14 Rita v. United States, 551 U.S. 338, 356-57 (2007). 15 Carrasco also challenges his sentence on the grounds of 16 substantive unreasonableness. Our review merely “provide[s] 17 a backstop for those few cases [in which] . . . the sentence 18 imposed was shockingly high, shockingly low, or otherwise 19 unsupportable as a matter of law.” United States v. Rigas, 20 583 F.3d 108, 123 (2d Cir. 2009). While this Court has 21 declined to adopt the doctrine that a within-Guidelines 22 sentence is presumptively reasonable, “[w]e recognize that 4 1 in the overwhelming majority of cases, a Guidelines sentence 2 will fall comfortably within the broad range of sentences 3 that would be reasonable in the particular circumstances.” 4 United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). 5 In imposing Carrasco’s within-Guidelines sentence, the 6 district court cited its belief that Carrasco’s conduct 7 “show[ed] a complete disregard or lack of respect for the 8 laws of this country.” Taking the relevant history as a 9 whole, it cannot be said that the district court abused its 10 discretion because Carrasco repeatedly entered the country 11 illegally, was previously convicted of drug-trafficking, and 12 dangerously attempted to evade the police. We find that the 13 district court’s sentence was “located within the range of 14 permissible decisions” and is thus substantively reasonable. 15 See Cavera, 550 F.3d at 189 (internal quotation marks 16 omitted). 17 Lastly, the potential applicability of the “Fast-Track” 18 downward departure program was not raised at the district 19 court by either the Government, defense counsel, or the 20 court and is therefore waived. To the extent that Carrasco 21 raises an ineffective assistance of counsel claim, the 22 record before us is insufficient to make a determination. 23 We therefore decline to decide it on appeal. 5 1 For the foregoing reasons, the judgment of the district 2 court is hereby AFFIRMED. 3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 6