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- 734

- cr

United States v. Daniel Antonio Salas

- Miranda

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 1

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 2

1 8 t h d a y of D e c e m b e r

, two t housand twenty

. 3

4

Present: ROSEMARY S. POOLER

, 5

RICHARD C. WESLEY, 6

WILLIAM J. NARDINI

, 7

Circuit Judges

, 8

9

_____________________________________________________ 10

11

UNITED STATES OF AMERICA

, 12

13

Appell ee

, 14

15

v. 20

- 734

- cr 16

17

DANIEL ANTONIO SALAS

- MIRANDA, 18

AKA JULIO CESAR ROMERO, 19

AKA A NTONIO RUIZ

- RODRIGUEZ, 20

AKA GUSTAVO JAIME OLMEDO

- RAMIREZ, 21

AKA JOHN DOE

, 22

23

Defendant

- Appell ant

. 24

_____________________________________________________ 25

26

Appearing for Appellant: James P. Ega n, Assistant Federal Defender, Northern District of 27

New York, Syracuse, NY

, for Lisa Peebles, Federal Public 28

Defender for the Northern District of New York, Syracuse, N

. Y. 29

302 Appearing for Appellee: Paul D. Silver, Assistant United States Attorney

, for Antoinette T. 1

Bacon, Acting United States Attorney for the Northern District of 2

New York, Syracuse, N

. Y. 3

4

Appeal from the United States District Court for the Northern District of New York 5

( D’Agostino

, J. ). 6

7

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 8

AND DECREED that the judgment be and it hereby is AFFIRMED

. 9

10

Defendant

- Appellant Daniel Antonio Salas

- Miranda appeals from the February 14, 2020 11

judgment in a criminal case entered in the United States District Court for the Northern D istrict 12

of New York (D’Agostino, J .) following his plea of guilty to one count of illegally reentering the 13

United States after having been removed, in violation of 8 U.S.C. § 1326(a). We assume the 14

parties’ familiarity with the underlying facts, procedural history, and specification of issues for 15

review. 16

17

In calculating Salas

- Miranda’s applicable range under the United States Sentencing 18

Guidelines, t he district court appl ied a 10

- level enhancement based on his recent state court 19

conviction for a felony committed after illegally reentering the country . The district court then 20

imposed a within

- Guidelines sentence of 24 months in prison and ordered that the sentence run 21

consecutively to Salas

- Miranda’s 10

- year state court term of imprisonment. Sala s

- Miranda 22

argues on appeal that this sentence was substantively unreasonable. 23

24

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

- of

- discretion standard.” 25

United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks a nd citation 26

omitted). In reviewing claims of substantive unreasonableness , we consider “the totality of the 27

circumstances, giving due deference to the sentencing judge’s exercise of discretion,” and we 28

“will

. . . set aside a district court’s substantive determination only in exceptional cases where the 29

trial court’s decision c annot be located within the range of permissible decisions.” Id. at 189

- 90 30

(internal quotation marks and citations omitted). 31

32

Section 2L1.2(b)(3)(A) of the Sentencing Guidelines provides that a defendant’s offense 33

level should be increased by 10 if, after he was ordered deported for the first time, he engage d in 34

criminal conduct that result ed in a “conviction for a felony offense (other than an illegal reentry 35

offense) for which the sentence imposed was five years or more.” The Sentencing Commission 36

made clear the purpose of the enhancement was to capture criminal conduct after an initial 37

remo val: “a defendant who sustains criminal convictions occurring before and after the 38

defendant’s first order of deportation warrants separate sentencing enhancement.” U.S.S.G. 39

Appendix C Amendment 802. 40

41

Salas

- Miranda acknowledges that the G uidelines enhanc ement applies here but argues 42

that the imposition of a G uidelines sentence was arbitrary, as it was imposed based on the fact 43

that he was convicted of a separate state offense

. T he imposition of a G uidelines sentence can be 44

substantively unreasonabl e

. See United States v. Dorvee , 616 F.3d 174, 183

- 84 (2d Cir. 2010). 45

However, our review is “intended to provide a backstop against sentences that are shockingly 463 high, shockingly low, or otherwise unsupportable as a matter of law” and “substantive 1

reasonableness review is not an opportunity for tinkering with sentences we disagree with, . . . 2

[and] we place great trust in sentencing courts.” Id. (citations and internal quotation marks 3

omitted). Additionally, “[w]hile we have declined to adopt a per se rule, [w]e recognize that in 4

the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad 5

range of sentences th at would be reasonable in the particular circumstances.” United States v. 6

Ingram , 721 F.3d 35, 37 (2d Cir. 2013) (internal quotation marks and citation omitted). 7

8

The G uidelines sentence imposed here was not substantively unreasonable. I t is true that, 9

as Salas

- Miranda argues

, a defendant who engages in similar state criminal conduct following 10

deportation but is not convicted prior to sentencing on the reentry offense does not face an 11

enhancement . However, this potential discrepancy does not imply that the sentence is shockingly 12

high or manifestly unjust. See United States v. Bonilla , 618 F.3d 102, 109 (2d Cir. 2010). Indeed, 13

the entire purpose of th e enhancement is to capture criminal conduct com mitted after illegal 14

reentry and

, in this case, the district court applied the enhancement exactly as it was intended. 15

Had Salas

- Miranda’s federal sentencing preceded his state court conviction, that quirk of timing 16

would have resulted in a Guidelines rang e that failed to capture the full extent of his criminal 17

conduct. The district court was not compelled to reduce Salas

- Miranda’s sentence to account for 18

that potential scenario

. 19

20

In certain rare cases where we have found G uidelines sentences substantively 21

unreasonabl e , we have noted that the Sentencing Commission departed from its usual empirical 22

approach to sentencing practices. See

, e.g

., Dorvee , 616 F.3d at 184 (noting that the Sentencing 23

Commission had not formulated child pornography guid elines but enhanced punishments at the 24

direction of Congress) ; United States v. Jenkins , 854 F.3d 181, 1 89

- 90 (2d Cir. 2017) (noting that 25

the Sentencing Commission had “effectively disavowed” the child pornography guidelines)

. 26

Here, there is no indication that the Sentencing Commission departed from past practice in 27

crafting this enhancement. The district court appropriately applied the enhancement for its 28

intended purpose and acted well within the bounds of its discretion in declining to vary 29

downwards from the resulting Guidelines range. 30

31

Salas

- Miranda next c hallenge s the district court’s decision to run his federal sentence 32

consecutively to the state sentence

. We will not overturn a decision to run a sentence 33

consecutive ly absent an abuse of discretion. See United States v. Rodriguez , 715 F.3d 451, 451

- 34

52 (2d Cir. 2013). The district court consider s the Section 3553(a) factors in determining whether 35

to run a sentence consecutively or concurrently. 18 U.S.C. § 3584(b). 36

37

Salas

- Miranda argues that the district court failed to adequately consider the possibility 38

that the state court had fashioned its sentence with the understanding that Salas

- Miranda was 39

i llegally present in the country , as well as the possibility that the state court sentence already 40

accounted for his criminal history and repeated unlawful entries into the United States

. This 41

argument was not raised below, and therefore we review the district court’s decision only for 42

plain error. See United States v. Dove , 884 F.3d 138, 151 (2d Cir. 2018). 43

44

We find no error in the district court’s sentencing decision

. The court properly considered 45

Salas

- Miranda’s entire criminal histo ry and pattern of reentry when assessing whether to run the 464 sentences consecutively. See 18 U.S.C. § 3584(b). If Salas

- Miranda thought that the state court’s 1

sentencing analysis sh ould affec t the district court’s analysis , he was free to make that argument 2

below. He failed to do so. “District courts have broad discretion both as to the type of 3

information they may consider in imposing sentence and the source from which that information 4

derives.” United States v. Messina , 806 F.3d 55, 65 (2d Cir. 201 5). T he district court acted 5

within its broad discretion in imposing a consecutive sentence. 6

7

We have considered the remainder of Salas

- Miranda’s arguments and find them to be 8

without merit. Accordingly, the judgment of the district court hereby is AFFIRMED

. 9

10

11

12

FOR THE COURT: 13

Catherine O’Hagan Wolfe, Clerk 14

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