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 ELECTRON IC 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 Unite d States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
29 th 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, Fe deral 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 St ates Court of Interna tional 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 Cour t 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 a ppeals from the Augus t 16, 2018 judgment of conviction and sentence principall y of 54 months’ imprisonment and 3 years’ supervised release for violations of 18 U.S.C. § 1542 (making false st atements in an applic ation 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 Di strict of New York (Schofield, J. ). He challenges his sentence on the grounds that it was proce durally and substantively unreasonable. We assume the parties’ familiarity with the underlying fa cts, procedural history, and speci fication of issues for review.

Pichardo argues that his sentence was pro cedurally unreasonable because the district court had an “inaccurate view of the facts,” name ly that it “mentioned, but did not seem to take into account, [his] physical and mental health problems, the n on-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 unsubsta ntiated 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 othe r 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 c itations omitted). In addition, the sentencing judge must “state in open court the reasons fo r its imposition of [a] particular sentence.” 18 U.S.C. § 3553(c)

.

Despite Pichardo contentions otherwise, the di strict court did consider and discuss the significance of his health probl ems. At sentencing, the cour t noted Pichardo’s ailments but ultimately concluded “that a subs tantial 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 crime s and his potential mo tives for committing them, and the court recognized them at the hearing. These argum ents notwithstanding, th e court found it more significant that Pichardo was “engaged in a frau d where [he] took someon e’s identity and also government benefits fo r a very long time.” Id. at 73.

Further, the district court pr operly considered Pichardo’s pr opensity to return to the
United States. Its conclusion that he likely would return was s upported by its articulation of his significant ties to the United Stat es, including his living in the c ountry 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 info rmation suggesting that he ha d traveled to the Dominican3 Republic at any point in his adult life. Given these ties, it wa s 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 Un ited States, and it appropriately
discussed them based on the fa ctors set forth in Section 3553 (a). Accordingly, Pichardo’s argument that the sentence was pr ocedurally unreas onable fails.

Pichardo also appeals on the basis that hi s 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 sw indling Medicaid, or a store owner who cheats the food stamp program,” but is “harsher than is needed to properl y punish Mr. Pichardo.” Appellant’s Br. at 16. We disagree.

We review a district court’ s sentence under a “deferen tial 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 reviewi ng claims of substantive unreasonableness, we consider “the totality of th e circumstances, giving due defe rence 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 quot ation marks and citation s omitted). And, while we do not presume that a Guidelin es 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 senten ce is not substantively unreasonable. The Presentence Report outlined a guide lines range of 54 to 61 months ’ imprisonment. The district court imposed a sentence on the lowest end of that range. As the di strict court recognized, Pichardo used another person’s identity for over a decade and fraudulently obtained $95,000 in government benefits. On these bases, we di sagree with Pichardo that his sentence was substantively unreasonable.

We have considered the remainder of Pichar do’s arguments and find them to be without merit. Accordingly, the judgment of th e district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk