15-677-cr

United States v. Velasquez-Argueta

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 8th day of March, two thousand sixteen. 

PRESENT: JOSÉ A. CABRANES, 

BARRINGTON D. PARKER, 

DEBRA ANN LIVINGSTON, 

Circuit Judges. 

 

UNITED STATES OF AMERICA, 

Appellee, No. 15-677-cr 

v. 

DIMAS VELASQUEZ-ARGUETA, 

Defendant-Appellant. 

 

FOR DIMAS VELASQUEZ-ARGUETA: Fonda Dawn Kubiak, Federal Public 

Defender’s Office, Western District of 

New York, Buffalo, NY. 

FOR UNITED STATES OF AMERICA: Stephan J. Baczynski (Joseph J. 

Karaszewski, on the brief), Assistant United 

States Attorneys, for William J. Hochul, Jr., 

United States Attorney for the Western 

District of New York, Buffalo, NY. 
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 Appeal from a judgment of the United States District Court for the Western District of New 

York (Richard J. Arcara, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED. 

Defendant-appellant Dimas Velasquez-Argueta (“Velasquez-Argueta”), a citizen of 

Honduras, pleaded guilty to one count of violating 8 U.S.C. § 1326(a) and (b)(2), arising from his 

reentry of the United States after having been deported subsequent to a conviction for committing 

an aggravated felony. Velasquez-Argueta was sentenced principally to 57 months’ imprisonment. 

The District Court entered judgment against Velasquez-Argueta on February 27, 2015. This appeal 

followed. 

The sole issue before us on appeal is whether the sentence imposed by the District Court is 

procedurally or substantively unreasonable. Velasquez-Argueta argues that his sentence is (1) 

procedurally unreasonable because the District Court failed to address or acknowledge his 

arguments in support of a lesser sentence and relied on clearly erroneous facts; and (2) substantively 

unreasonable because it is greater than necessary to serve the goals of sentencing. We assume the 

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on 

appeal. For the reasons set forth below, we reject Velasquez-Argueta’s procedural- and substantivereasonableness arguments as meritless. 

“We review a sentence for procedural and substantive reasonableness under a deferential 

abuse-of-discretion standard.” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (internal 

quotation marks omitted). A sentence is procedurally unreasonable if the district court “fails to 

calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing 

Guidelines as mandatory, fails to consider the § 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) (internal quotation marks omitted). “We will set aside sentences as 

substantively unreasonable only in exceptional cases where the trial court’s decision cannot be 

located within the range of permissible decisions” because the sentence is “so shockingly high, 

shockingly low, or otherwise unsupportable as a matter of law that allowing [it] to stand would 

damage the administration of justice.” Thavaraja, 740 F.3d at 259 (internal quotation marks omitted). 

First, we conclude that the District Court did not err procedurally when it imposed the 57-

month sentence. We reject Velasquez-Argueta’s argument that the District Court was required to 

specifically address his arguments in support of a downward departure during the sentencing 

hearing. “[W]e entertain a strong presumption that the sentencing judge has considered all 

arguments properly presented to [him], unless the record clearly suggests otherwise. This 

presumption is especially forceful when, as was the case here, the sentencing judge ma[de] 
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abundantly clear that [he] has read the relevant submissions and that [he] has considered the 

§ 3553(a) factors.” United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on other grounds by

Rita v. United States, 551 U.S. 338 (2007); see App. 79, 83–84. Moreover, the record reveals that the 

District Court adequately explained its sentence. See App. 83–85. 

We also reject Velasquez-Argueta’s argument that the District Court based the sentence on 

clearly erroneous facts when it stated during sentencing that it “believe[d]” that Velasquez-Argueta 

“ha[d] been either removed or deported” six times. App. 84. According to the Presentence 

Investigation Report, Velasquez-Argueta had been removed or deported five times and ordered 

removed a sixth time, which order was not immediately executed because he was returned to state 

custody pursuant to a warrant for aggravated rape. Accordingly, the District Court’s statement 

during the sentencing hearing, even if imprecise, does not demonstrate that the Court based 

Velasquez-Argueta’s sentence on a clearly erroneous fact. 

Second, having reviewed the record, we conclude, substantially for the reasons stated by the 

District Court during the sentencing hearing, that Velasquez-Argueta’s sentence of 57 months’ 

imprisonment is not substantively unreasonable. See App. 83–86. 

CONCLUSION 

We have considered the defendant-appellant’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the February 27, 2015 judgment of the District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk