18-2559-cr 

United States v. Adolfo Pichardo

 

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. 

 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 

29th day of October, two thousand nineteen. 

Present: ROSEMARY S. POOLER, 

 JOSEPH F. BIANCO, 

 Circuit Judges, 

 JENNIFER CHOE-GROVES, 

 Judge,1

_____________________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. 18-2559-cr 

ADOLFO PICHARDO, 

 Defendant-Appellant. 

_____________________________________________________ 

 

Appearing for Appellant: Barry D. Leiwant, Federal Defenders of New York, Inc., Appeals 

Bureau, New York, N.Y. 

 

Appearing for Appellee: Anna M. Skotko, Assistant United States Attorney (Ryan B. 

Finkel, Assistant United States Attorney, on the brief), for 

1

 Judge Jennifer Choe-Groves, of the United States Court of International Trade, sitting 

by designation. 
2 

Geoffrey S. Berman, United States Attorney for the Southern 

District of New York, New York, N.Y. 

 Appeal from the United States District Court for the Southern District of New York 

(Schofield, J.). 

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the matter be and it hereby is AFFIRMED. 

 Defendant-Appellant Adolfo Pichardo appeals from the August 16, 2018 judgment of 

conviction and sentence principally of 54 months’ imprisonment and 3 years’ supervised release 

for violations of 18 U.S.C. § 1542 (making false statements in an application for a passport); 

18 U.S.C. § 1347 (healthcare fraud); 18 U.S.C. § 641 (theft of government benefits); and 

18 U.S.C. § 1028A (aggravated identity theft) following a guilty plea in the United States 

District Court for the Southern District of New York (Schofield, J.). He challenges his sentence 

on the grounds that it was procedurally and substantively unreasonable. We assume the parties’ 

familiarity with the underlying facts, procedural history, and specification of issues for review. 

 

Pichardo argues that his sentence was procedurally unreasonable because the district 

court had an “inaccurate view of the facts,” namely that it “mentioned, but did not seem to take 

into account, [his] physical and mental health problems, the non-violent nature of his crimes, and 

the extent to which those crimes were driven by hunger and his need for medical care,” and 

“should not have imposed a ‘greater sentence’ based on an unsubstantiated fear that [he] would 

reoffend by returning to the United States.” Appellant’s Br. at 13, 15. 

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 and citations 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). 

Despite Pichardo contentions otherwise, the district court did consider and discuss the 

significance of his health problems. At sentencing, the court noted Pichardo’s ailments but 

ultimately concluded “that a substantial sentence of imprisonment is important” for both specific 

and general deterrence purposes. App’x at 73-74. Moreover, defense counsel made extensive 

arguments about Pichardo’s crimes and his potential motives for committing them, and the court 

recognized them at the hearing. These arguments notwithstanding, the court found it more 

significant that Pichardo was “engaged in a fraud where [he] took someone’s identity and also 

government benefits for a very long time.” Id. at 73. 

Further, the district court properly considered Pichardo’s propensity to return to the 

United States. Its conclusion that he likely would return was supported by its articulation of his 

significant ties to the United States, including his living in the country for 35 years illegally and 

16 years under a stolen identity; his having four children here, including a seven-year-old 

daughter; and the absence of information suggesting that he had traveled to the Dominican 
3 

Republic at any point in his adult life. Given these ties, it was not unreasonable for the court to 

consider Pichardo’s propensity to return to the United States as a relevant factor. 

 In sum, the court explained its consideration of Pichardo’s health issues, his personal 

characteristics, and the likelihood that he would return to the United States, and it appropriately 

discussed them based on the factors set forth in Section 3553(a). Accordingly, Pichardo’s 

argument that the sentence was procedurally unreasonable fails. 

Pichardo also appeals on the basis that his sentence was substantively unreasonable even 

though it fell within the Guidelines range. He argues that the “guideline sentence . . . may be 

appropriate for a health care provider who is swindling Medicaid, or a store owner who cheats 

the food stamp program,” but is “harsher than is needed to properly punish Mr. Pichardo.” 

Appellant’s Br. at 16. We disagree. 

We review a district court’s sentence under a “deferential abuse-of-discretion 

standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal 

quotation marks and citation omitted). In reviewing claims of substantive unreasonableness, we 

consider “the totality of the circumstances, giving due deference to the sentencing judge’s 

exercise of discretion,” and we “will . . . set aside a district court’s substantive determination 

only in exceptional cases where the trial court’s decision cannot be located within the range of 

permissible decisions.” Id. at 189-90 (internal quotation marks and citations omitted). And, while 

we do not presume that a Guidelines sentence is reasonable, in the “overwhelming majority of 

cases,” it is. United States v. Rodriguez, 715 F.3d 451, 451 (2d Cir. 2013) (citation omitted). 

On the record before us, Pichardo’s sentence is not substantively unreasonable. The 

Presentence Report outlined a guidelines range of 54 to 61 months’ imprisonment. The district 

court imposed a sentence on the lowest end of that range. As the district court recognized, 

Pichardo used another person’s identity for over a decade and fraudulently obtained $95,000 in 

government benefits. On these bases, we disagree with Pichardo that his sentence was 

substantively unreasonable. 

 We have considered the remainder of Pichardo’s arguments and find them to be without 

merit. Accordingly, the judgment of the district court hereby is AFFIRMED. 

 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk