*Because the Honorable José A. Cabranes recused himself prior to oral argument, this appeal is being decided by the remaining two members of the panel pursuant to Second Circuit Internal Operating Procedure E(b).

1 09-4630-cr United States v. Lasaga



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## AMENDED SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 20 th** **day of October, two thousand ten.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **WILFRED FEINBERG,** 8 **Circuit Judge**

**.** * 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **United States of America,** 12 **Appellee ,**  13 14 **-v.- 09-4630-cr** 15 16 **Antonio Lasaga,** 17 **Defendant-Appellant**

**.** 18 19 - - - - - - - - - - - - - - - - - - - -X 20 212 **APPEARING FOR APPELLANT:** Diane Polan (S. Max Simmons, on 1 the brief ), Law Offices of Diane 2 Polan, LLC, New Haven, CT. 3 4 **APPEARING FOR APPELLEE:** Jonathan S. Freimann, Assistant 5 United States Attorney (Deirdre 6 Daly, Acting United States 7 Attorney, and Robert M. Spector, 8 Assistant United States 9 Attorney, District of 10 Connecticut, on the brief ). 11 12 Appeal from a judgment of the United States District 13 Court for the District of Connecticut (Thompson, J. ). 14

**UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 15 **AND DECREED**that the judgment of the district court be 16
**AFFIRMED**

. 17

Defendant-Appellant Antonio Lasaga (“Lasaga”) appeals 18 from a judgment of the United States District Court for the 19 District of Connecticut (Thompson, J. ), entered on October 20 23, 2009 (the “Order”), refusing by written decision to 21 resentence Lasaga. The judgment follows this Court’s remand 22 in United States v. Lasaga , 136 F. App’x 428 (2d Cir. 2005), 23 which was issued in light of United States v. Booker , 543 24 U.S. 220 (2005) and United States v. Crosby , 397 F.3d 103 25 (2d Cir. 2005). We assume the parties’ familiarity with the 26 underlying facts, the procedural history, and the issues 27 presented for review. 28

This case returns to us for a third time following the 29 decisions of this Court in United States v. Lasaga , 328 F.3d 30 61 (2d Cir. 2003) (Lasaga I ), which remanded for further 31 factual findings with respect to the district court’s upward 32 departure on the basis of psychological harm to a minor 33 victim, and United States v. Lasaga , 136 F. App’x 428 (2d 34 Cir. 2005) (Lasaga II ), which remanded for a determination 35 whether resentencing was necessary in light of this Court’s 36 decision in Crosbyand instructed the district court to 37 reconsider the criminal history departure “in light of the 38 Supreme Court’s recent decision in Shepard v. United States
, 39 544 U.S. 13 (2005) . . . and . . . Williams v. United 40 States , 503 U.S. 193, 201 (1992) . . . .” Lasaga II , 136 F. 41 App’x at 433. 423 On remand, the district court solicited and received 1 resentencing memoranda from the government and Lasaga, and 2 concluded that it would not have imposed a different 3 sentence had the Sentencing Guidelines been advisory at the 4 time the sentence was imposed. In so doing, the district 5 court rejected Lasaga’s argument that the court could not 6 enhance the sentence on any basis other than facts admitted 7 by Lasaga or proved to a jury beyond a reasonable doubt; and 8 the court observed that it had already considered all of the 9 mitigating factors set forth in Lasaga’s resentencing 10 memorandum at each of the prior sentencing hearings. With 11 respect to this Court’s instruction concerning the criminal 12 history departure, the district court advised: “Assuming 13 arguendo a Criminal History of Category I, the resulting 14 range under the Sentencing Guidelines is 151 months to 188 15 months, which encompasses the sentence the court continues 16 to view as being the appropriate sentence. Therefore the 17 court need not address the issues of departure to Criminal 18 History II.” United States v. Lasaga , No. 99 cr 122(AWT), 19 Slip Op. at 3-4 (D. Conn. Oct. 23, 2009). 20

In the current appeal, Lasaga cites the district 21 court’s discussion as to whether it would impose the same 22 sentence even without a one-level criminal history 23 enhancement. Lasaga argues that, by recalculating the 24 guideline range, the district court sentenced Lasaga denovo 25 without the benefit of a sentencing hearing and in violation 26 of Fed. R. Crim. P. 32. 27

We review a sentence for reasonableness even after a 28 district court declines to resentence pursuant to Crosby

. 29 United States v. Williams , 475 F.3d 468, 474 (2d Cir. 2007). 30 The reasonableness review contemplated by Bookerrequires 31 “consideration not only of the sentence itself, but also of 32 the procedures employed in arriving at the sentence.” 33 United States v. Fernandez , 443 F.3d 19, 26 (2d Cir. 2006). 34 Reasonableness review is “akin to review for abuse of 35 discretion,” which asks “whether the sentencing judge 36 ‘exceeded the bounds of allowable discretion[,] . . . 37 committed an error of law in the course of exercising 38 discretion, or made a clearly erroneous finding of fact.’” 39 Id. at 27 (quoting Crosby , 397 F.3d at 114). 40

Lasaga’s primary appellate contention, that the court 41 in effect imposed a new sentence, does not take into account 42 the district court’s limited obligations in response to a 43 Crosbyremand. First, district courts “should obtain the 441Following this Court’s remand in Lasaga I , the district court calculated Lasaga’s offense conduct level to be 34 and his criminal history category to be level II. The corresponding sentencing range was 168 months to 210 months. Assuming an offense conduct level of 34 and a criminal history category of level I, the sentencing range would be 151 months to 188 months.

4 views of counsel, at least in writing, but ‘need not’ 1 require the presence of the Defendant.” Crosby , 397 F.3d at 2 120 (citation omitted). Next, “[u]pon reaching its decision 3 (with or without a hearing) whether to resentence, the 4 district court should either place on the record a decision 5 not to resentence, with an appropriate explanation, or 6 vacate the sentence and, with the Defendant present, 7 resentence in conformity with the [Sentencing Reform Act of 8 1984], [Booker ], and [Crosby ], including an appropriate 9 explanation.” Id. (citation omitted). Here, the district 10 fulfilled both obligations. Specifically, in deciding not 11 to resentence Lasaga, the district court explained that it 12 had, on two prior occasions, considered all of factors set 13 forth in 18 U.S.C. § 3553(a), together with the mitigating 14 factors set forth in Lasaga’s sentencing memoranda, and 15 concluded that 180 months’ imprisonment was an appropriate 16 sentence. 17

The district court’s discussion of Lasaga’s criminal 18 history did not amount to a denovosentence; rather, it was 19 an acknowledgment that the criminal history departure would 20 have had no impact on the sentencing, given that either 21 guideline range would have encompassed Lasaga’s ultimate 22 sentence of 180 months. 1Accordingly, because “the record 23 indicates clearly that the district court would have imposed 24 the same sentence” regardless of whether or not the upward 25 departure applies, any claimed error (assuming that there 26 was error), “may be deemed harmless.” United States v. Jass
, 27 569 F.3d 47, 69 (2d Cir. 2009) (internal quotation marks 28 omitted). “As long as the sentencing judge is satisfied 29 that the same sentence would have been imposed no matter 30 which of the two guideline ranges applies, the sentence 31 should stand.” United States v. Bermingham , 855 F.2d 925, 32 934 (2d Cir. 1988). 33

Having affirmed the district court’s judgment, we **DENY** 34 as moot Lasaga’s motion to hold the appeal in abeyance 35 pending the Supreme Court’s decision in Pepper v. United 365 States , 130 S. Ct. 3499 (2010). Finding no merit in 1 Lasaga’s remaining arguments, we hereby **AFFIRM** the district 2 court’s judgment. 3

4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 8 9