We direct the Clerk of the Court to amend the official 1

caption to reflect this spelling of Silverio’s name.

06-3614-cr 

USA v. Negron (Silverio)

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2007

6

7

8 (Argued: April 1, 2008 Decided: April 24, 2008)

9

10 Docket No. 06-3614-cr

11

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13

14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 - v.-

19

20 JOSE NEGRON, RAFAEL GONZALES, ANGEL

21 MALDONADO, ALEXIS PRATTS, CHRISTIAN

22 SILVERIO, JOHN RODRIGUEZ, LIONEL

23 PINEIRO,

24 Defendants,

25

26 JULIO SILVERIO,1

27 Defendant-Appellant

28

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30

31 Before: JACOBS, Chief Judge, KEARSE and POOLER,

32 Circuit Judges.

33

34 Julio Silverio appeals from an order of the United
2

1 States District Court for the Eastern District of New York

2 (Weinstein, J.), declining to resentence him after a Crosby

3 remand. Silverio argues that the district court erred in

4 refusing to consider the terms of a rejected plea offer in

5 which the government had offered to recommend a lower

6 sentence. For the following reasons, we affirm.

7 LAWRENCE MARK STERN, New York,

8 NY, for Defendant-Appellant.

9

10 JEFFREY H. KNOX, Assistant

11 United States Attorney (Susan

12 Corkery, Assistant United States

13 Attorney, on the brief), for

14 Benton J. Campbell, United

15 States Attorney for the Eastern

16 District of New York, Brooklyn,

17 NY, for Appellee.

18

19 PER CURIAM:

20 Julio Silverio appeals from an order entered on August

21 2, 2006, in the United States District Court for the Eastern

22 District of New York (Weinstein, J.), declining to

23 resentence him after remand pursuant to United States v.

24 Crosby, 397 F.3d 103 (2d Cir. 2005). Silverio’s sole

25 argument on this appeal is that the district court

26 erroneously refused to consider the terms of a rejected plea

27 offer in which the government had offered to recommend a

28 lower prison term than ultimately imposed. We affirm
3

1 because nothing in 18 U.S.C. § 3553(a) or controlling

2 precedent requires a sentencing court to consider a rejected

3 plea offer.

4 Silverio was one of the ringleaders of a criminal gang

5 that engaged in a series of home and business robberies over

6 an 18-month period. The victims, including families with

7 small children, were held hostage and threatened and

8 terrorized at gunpoint until cash and valuables were turned

9 over. During plea negotiations, the government expressed

10 willingness to enter an agreement under Fed. R. Crim. P.

11 11(e)(1)(C) (2000), which would include a binding sentence

12 recommendation of 17 years’ imprisonment--notwithstanding an

13 estimated Sentencing Guidelines range of approximately 22 to

14 27 years. Against counsel’s advice, Silverio rejected this

15 offer, believing he might obtain greater leniency from the

16 sentencing judge. Silverio later accepted a plea agreement

17 that contained no binding sentence recommendation. Pursuant

18 to that agreement, he was convicted of kidnapping in aid of

19 racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and

20 (2), conspiracy to commit robbery in violation of 18 U.S.C.

21 § 1951, and use of a firearm in furtherance of crimes of

22 violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and
4

1 (2). He was sentenced principally to 272 months of

2 incarceration. 

3 Silverio’s initial appeal argued (inter alia) that the

4 district court erred in restricting a downward departure for

5 diminished capacity to a single level. By summary order

6 dated May 21, 2004, this Court affirmed the sentence,

7 specifically finding each of Silverio’s arguments without

8 merit. See United States v. Negron, 96 F. App’x 788 (2d

9 Cir. 2004) (unpublished), vacated on other grounds sub nom.

10 Silverio v. United States, 543 U.S. 1102 (2005). 

11 Subsequently, the Supreme Court vacated that summary order

12 and remanded in light of United States v. Booker, 543 U.S.

13 220 (2005); and this Court remanded to the district court

14 for a Crosby review. See United States v. Silverio, No. 01-

15 1210 (2d Cir. Nov. 15, 2005) (unpublished). However, our

16 May 21, 2004 decision as to the arguments presented in the

17 initial appeal was explicitly made part of our November 15,

18 2005 remand order to the extent it was consistent with

19 Crosby, and thus remains the law of the case. See United

20 States v. Williams, 475 F.3d 468, 475-76 (2d Cir. 2007).

21 On appeal from the district court’s decision following

22 the Crosby remand, Silverio argues that: (a) his rejection
5

1 of the earlier plea offer was a manifestation of his

2 diminished capacity at the time; and (b) the rejected offer

3 was an acknowledgment by the government that a lesser

4 sentence would have been sufficient. We review a sentence

5 for reasonableness, under an abuse-of-discretion standard,

6 see Gall v. United States, 128 S. Ct. 586, 594 (2007),

7 including when the district court has declined to resentence

8 pursuant to Crosby, see Williams, 475 F.3d at 474. Insofar

9 as Silverio is asserting an error in the extent of the

10 downward departure for diminished capacity in the original

11 sentence, the argument is barred by the law of the case

12 doctrine because it was adjudicated on his direct appeal. 

13 See United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir.

14 2002). 

15 “The law of the case doctrine will not, however, bar a

16 defendant who is not resentenced after a Crosby remand from

17 challenging the procedures used by the district court during

18 the Crosby remand.” Williams, 475 F.3d at 476. Here, the

19 district court fully complied with Crosby’s procedural

20 requirements, including appropriate consideration of the

21 factors set forth in 18 U.S.C. § 3553(a). Nothing in §

22 3553(a) or controlling precedent requires a district court
6

1 to consider a rejected plea offer. See Rita v. United

2 States, 127 S. Ct. 2456, 2465 (2007) (“[The sentencing

3 judge] may hear arguments by prosecution or defense that the

4 Guidelines sentence should not apply . . ..” (emphasis

5 added)); cf. United States v. Hamdi, 432 F.3d 115, 124 (2d

6 Cir. 2005) (noting “the well-settled legal principle that

7 ‘the sentencing judge is of course not bound by the

8 estimated range’ in a plea agreement” (quoting United States

9 v. Rosa, 123 F.3d 94, 98-99 (2d Cir. 1997))).

10 In any event, the record shows that during the Crosby

11 remand, defense counsel was given full opportunity to make

12 this argument. “[W]e entertain a strong presumption that

13 the sentencing judge has considered all arguments properly

14 presented to [him], unless the record clearly suggests

15 otherwise. This presumption is especially forceful when, as

16 was the case here, the sentencing judge makes abundantly

17 clear that [he] has read the relevant submissions and that

18 [he] has considered the § 3553(a) factors.” United States

19 v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006). The

20 sentencing decision carefully applied the § 3553(a) factors

21 to Silverio’s case, and specifically considered the kinds of

22 sentences available and the location of the sentence within
7

1 the Guidelines range. The district court declined to

2 resentence Silverio, in large part because of the

3 “horrendous” and “serious” nature of the offense. See id.

4 at 27 (“[I]n the overwhelming majority of cases, a

5 Guidelines sentence will fall comfortably within the broad

6 range of sentences that would be reasonable in the

7 particular circumstances.”). In doing so, the district

8 court committed no procedural or substantive error.

9

10 CONCLUSION

11 For the foregoing reasons, the order of the district

12 court is affirmed.