United States of America v. Perez-Fria, No. 10-1401 (2d Cir. 2011)
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Defendant appealed a judgment following a plea of guilty to illegal reentry into the United States after he was deported to the Dominican Republic when he finished serving his prison sentence for first degree manslaughter. At issue was whether defendant's sentence of 42 months' imprisonment was substantively unreasonable where the defendant claimed that the district court's sentence was unduly harsh in view of the factors in 18 U.S.C. 3553(a) and where the 16-level Guideline enhancement applicable to re-entrants with certain prior convictions was not based on review of past sentencing practices and empirical studies, was overly harsh, and was greater than necessary in view of fast track programs. The court held that defendant's sentence was not substantively unreasonable where the district court considered the nature and circumstances of his offense and the history and characteristics of the defendant under 18 U.S.C. 3553(a). The court also held that the 16-level Guideline enhancement was not substantively unreasonable where defendant's claims were without merit, the sentence was not unreasonably harsh when it reflected the serious nature of offenses, and where sentences in fast-track districts could not be compared with sentences in non-fast-track districts in order to demonstrate that the latter were longer than necessary.
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10-1401-cr United States v. Perez-Frias 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Submitted: March 22, 2011 Decided: March 31, 2011) Docket No. 10-1401-cr - - - - - - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, -v.PEDRO RUBEN PEREZ-FRIAS, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CALABRESI and LOHIER, Circuit Judges. Defendant-Appellant Pedro Ruben Perez-Frias appeals 30 from an April 13, 2010 judgment of the United States 31 District Court for the Southern District of New York (Chin, 32 J.) entered following a plea of guilty to illegal reentry in 33 violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). 34 Frias challenges the sentence of 42 months imprisonment on 35 the ground of substantive unreasonableness. 36 Perez- We affirm. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Darrell B. Fields, Federal Defenders of New York, Inc., Appeals Bureau, New York, New York, for Defendant-Appellant. Kan M. Nawaday, Assistant United States Attorney (David Raskin, Assistant United States Attorney, on the brief), on behalf of Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee. PER CURIAM: Defendant Pedro Ruben Perez-Frias ( Perez-Frias ) 19 pleaded guilty to one count of illegally reentering the 20 United States without permission after having been deported 21 following a conviction for the commission of an aggravated 22 felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). 23 United States District Court for the Southern District of 24 New York (Chin, J.) sentenced Perez-Frias principally to 42 25 months imprisonment. 26 substantive reasonableness of his sentence, arguing [1] that 27 the district court s sentence was unduly harsh in view of 28 the 18 U.S.C. § 3553(a) factors and [2] that the 16-level 29 enhancement applicable to reentrants with certain prior 30 convictions (a) is not based on review of past sentencing 31 practices and empirical studies, (b) is overly harsh The Perez-Frias challenges only the 2 1 compared to Guidelines applicable to more serious crimes, 2 and (c) is greater than necessary in view of districts that 3 have fast track programs. We affirm. 4 5 6 I Perez-Frias, a citizen of the Dominican Republic, 7 immigrated to the United States in 1977. On or about 8 December 12, 1995, at age 27, Perez-Frias was convicted in 9 New York State Supreme Court, New York County, of 10 manslaughter in the first degree, resulting in a sentence of 11 7 to 21 years imprisonment. 12 his conviction are as follows: Perez-Frias was dealing 13 marijuana, told a group of friends that he was having a 14 dispute with a rival seller, and inspired the murder of the 15 rival by telling his friends about his grievance, though 16 Perez-Frias was not otherwise involved in the killing. 17 or about June 2, 2008, Perez-Frias was released on parole 18 into the custody of immigration authorities, and immediately 19 deported to the Dominican Republic. 20 The relevant facts underlying On In August 2009, Perez-Frias illegally reentered the 21 United States. Within two months, on October 1, 2009, he 22 was arrested in Manhattan for possession of marijuana. 3 1 In December 2009, Perez-Frias was transferred from 2 state to federal custody, and charged in a single-count 3 indictment with illegal reentry without permission after 4 having been deported following a conviction for an 5 aggravated felony, in violation of 8 U.S.C. § 1326(a) and 6 (b)(2). 7 Prior to the plea, the Government provided Perez-Frias with 8 a letter pursuant to United States v. Pimentel, 932 F.2d 9 1029, 1034 (2d Cir. 1991), outlining its view of how the 10 U.S. Sentencing Guidelines ( Guidelines ) would apply to 11 Perez-Frias. 12 21 and a Criminal History Category of III, yielding a 13 Guidelines range of 46 to 57 months imprisonment. 14 plea proceeding, Judge Chin conducted a thorough allocution, 15 the adequacy of which is not challenged on appeal. 16 On January 27, 2010, Perez-Frias pleaded guilty. The Government calculated an offense level of At the The parties appeared before Judge Chin for sentencing 17 on April 7, 2010. 18 in the Government s Guidelines calculation and recommended a 19 bottom-of-the-range sentence of 46 months. 20 The Presentence Report ( PSR ) concurred Perez-Frias did not challenge the Guidelines 21 calculation in the district court (and does not do so on 22 appeal). Instead, Perez-Frias s sentencing submission 4 1 contended that the applicable Guidelines range was greater 2 than necessary to comply with the purposes of § 3553(a) and 3 argued for a non-Guidelines sentence. 4 asked for a reduction corresponding to the number of months 5 he had been in federal custody--from December 2009 up to the 6 date of sentencing--even though that time was not subject to 7 credit on his federal sentence because Perez-Frias was in 8 federal custody under a writ of habeas corpus ad 9 prosequendum from New York State custody. Perez-Frias also The Government 10 requested that the District Court impose a within-Guidelines 11 sentence of 46 to 57 months. 12 Before sentencing, Judge Chin confirmed that he had 13 considered the parties written submissions and statements 14 in court, as well as the statutory factors. 15 sentence, Judge Chin focused on the fact that Perez-Frias 16 reentered soon after being deported and that he promptly 17 recidivated, engaging in the same drug activity that led to 18 his manslaughter conviction and ultimate deportation. 19 so, Judge Chin was prepared to give Perez-Frias a 20 bottom-of-the-range sentence of 46 months. 21 defense s request (and over the Government s objection) the 22 District Court awarded Perez-Frias credit for his four 5 In fashioning a Even Moreover, at the 1 months in federal custody and imposed a below-Guidelines 2 sentence of 42 months. 3 4 5 II Assuming that the district court s sentencing decision 6 is procedurally sound, the appellate court should then 7 consider the substantive reasonableness of the sentence 8 imposed under an abuse-of-discretion standard. 9 United States, 552 U.S. 38, 51 (2007). Gall v. [W]hen conducting 10 substantive review, we take into account the totality of the 11 circumstances, giving due deference to the sentencing 12 judge s exercise of discretion, and bearing in mind the 13 institutional advantages of district courts. 14 v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (in banc). 15 [W]e will not substitute our own judgment for the district 16 court s on the question of what is sufficient to meet the 17 § 3553(a) considerations in any particular case. 18 States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). 19 will instead set aside a district court s substantive 20 determination only in exceptional cases where the trial 21 court s decision cannot be located within the range of 22 permissible decisions. United States See United We Cavera, 550 F.3d at 189 (quoting 6 1 United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007). 2 Generally, [i]f the ultimate sentence is reasonable and 3 the sentencing judge did not commit procedural error in 4 imposing that sentence, we will not second guess the weight 5 (or lack thereof) that the judge accorded to a given factor 6 or to a specific argument made pursuant to that factor. 7 United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009) 8 (alteration in original) (quoting Fernandez, 443 F.3d at 9 34). 10 11 III 12 A 13 The district court imposed a below-Guidelines sentence 14 of 42 months imprisonment. [I]n the overwhelming majority 15 of cases, a Guidelines sentence will fall comfortably within 16 the broad range of sentences that would be reasonable in the 17 particular circumstances. 18 is therefore difficult to find that a below-Guidelines 19 sentence is unreasonable. 20 552 U.S. 85, 109 (2007) ( We have . . . recognized that, in 21 the ordinary case, the Commission s recommendation of a 22 sentencing range will reflect a rough approximation of Fernandez, 443 F.3d at 27. It See Kimbrough v. United States, 7 1 sentences that might achieve § 3553(a) s objectives. 2 (quoting Rita v. United States, 551 U.S. 338, 350 (2007))). 3 The district court considered Perez-Frias s history and 4 personal characteristics; and the sentence was based on: 5 (1) the seriousness of Perez-Frias s prior conviction 6 (manslaughter), (2) his rapid reentry after deportation, and 7 (3) his arrest soon afterward for conduct that (like the 8 manslaughter offense) stemmed from his involvement with 9 marijuana. The district court s assessment of the nature 10 and circumstances of the offense and the history and 11 characteristics of the defendant, 18 U.S.C. § 3553(a), 12 supported the decision to sentence Perez-Frias no further 13 below the bottom of the Guidelines range. 14 15 B Perez-Frias argues that the 16-level Guideline 16 enhancement for reentry is deficient because the Commission 17 arrived at it without reference to specific empirical data. 18 In support, Perez-Frias cites the Supreme Court s decision 19 in Kimbrough, 552 U.S. at 109, holding that district judges 20 are entitled to conclude that the crack cocaine Guideline 21 was greater than necessary to meet the standards of 22 § 3553(a) if they believe the Guideline do[es] not 8 1 exemplify the Commission s exercise of its characteristic 2 institutional role ; and our recent decision in United 3 States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010), holding 4 that the Commission did not use [an] empirical approach in 5 formulating the Guidelines for child pornography and 6 instead amended the Guidelines at the direction of Congress. 7 However, the absence of empirical support is not the 8 relevant flaw we identified in Dorvee. We criticized the 9 child pornography Guideline in Dorvee because Congress 10 ignored the Commission and directly amended the Guideline, 11 which had the effect of eviscerat[ing] the fundamental 12 statutory requirement in § 3553(a) that district courts 13 consider the nature and circumstances of the offense and 14 the history and characteristics of the defendant. 15 F.3d at 184-86, 187. 16 Guideline. 17 amending the Guidelines with respect to illegal reentry 18 cases. 19 was based on the Commission s own determin[ation] that 20 these increased offense levels are appropriate to reflect 21 the serious nature of these offenses. 22 (amend. 375, Reason for Amendment ). See 616 There is no such flaw in the reentry Congress did not bypass the usual procedure for To the contrary, the 16-level enhancement in § 2L1.2 9 U.S.S.G. Appx. C Moreover, as discussed 1 above in Point III.A, the district court considered the 2 required § 3553(a) factors to arrive at Perez-Frias s 3 sentence. 4 § 2L1.2 is without merit. Accordingly, Perez-Frias s challenge to U.S.S.G. 5 6 C Perez-Frias deploys an argument that has been raised by 7 many defendants sentenced for illegal reentry: because the 8 illegal reentry is itself a nonviolent act, the 16-level 9 enhancement is unduly harsh. We join our sister Circuits 10 that have considered and rejected this argument. 11 applicable Guidelines range here is not rendered 12 unreasonable simply because § 2L1.2 establishes a base 13 offense level for a nonviolent offense that is equal to or 14 greater than that of certain violent offenses. 15 has the power to define a crime and set its punishments. 16 United States v. Lopez-Reyes, 589 F.3d 667, 672 (3d Cir. 17 2009) (quoting United States v. MacEwan, 445 F.3d 237, 252 18 (3d Cir. 2006)); see also United States v. Ramirez-Garcia, 19 269 F.3d 945, 947-48 (9th Cir. 2001) (explaining that 20 § 2L1.2 properly implements Congress s desire to enhance 21 the penalties for aliens with prior convictions in order to 22 deter others[] by increasing the sentencing range for 23 aliens with prior convictions ). 10 The Congress 1 2 D Perez-Frias contends that his sentence is unreasonable 3 because much lower sentences have been shown to be 4 sufficient but not greater than necessary under § 3553(a) in 5 districts with so-called fast-track programs. 6 that argument in United States v. Hendry, 522 F.3d 239, 242 7 (2d Cir. 2008) (per curiam), which concluded that defendants 8 in fast-track districts are not similarly situated to 9 defendants in non-fast-track districts, so that sentences We rejected 10 in fast-track districts cannot be compared with sentences in 11 non-fast-track districts in order to demonstrate that the 12 latter are longer than necessary. 13 14 15 16 CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court. 11
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