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 a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “sum mary 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 Cour t 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 8 th day of March, two thousand sixteen.

PRESENT: J OSÉ A. C ABRANES
, B ARRINGTON D. P ARKER
, D EBRA A NN L IVINGSTON
, Circuit Judges.

U NITED S TATES OF A MERICA
,
Appellee, No. 15-677-cr

v.

D IMAS V ELASQUEZ -A RGUETA
,
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.2 Appeal from a judgment of the United States District Court for the Western District of New York (Richard J. Arcara, Judge ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED

.
Defendant-appellant Dimas Velasquez-Argu eta (“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 sent enced principally to 57 months’ imprisonment. The District Court entered judgment against Velasq uez-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. Vela squez-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 rej ect Velasquez-Argueta’s procedural- and substantivereasonableness arguments as meritless.

“We review a sentence for procedural and sub stantive 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 procedura lly unreasonable if the district court “fails to calculate (or improperly calculates) the Sentenci ng 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 ma rks omitted). “We will set aside sentences as substantively unreasonable only in exceptional ca ses 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 ma tter 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 ar gument 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 wa s the case here, the sentencing judge ma[de]3 abundantly clear that [he] has read th e 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 senten cing 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 immedia tely executed because he was returned to state custody pursuant to a warrant for aggravated ra pe. Accordingly, the District Court’s statement during the sentencing hearing, even if impreci se, 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