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- 3195 United States v. Vasquez

- Drew UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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 OR DER 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 sta ted 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 3 rd day of March, two thousand twenty

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. Present: G UIDO C ALABRESI , G ERAR D E. L YNCH , W ILLIAM J. N ARDINI , Circuit Judges

.

_____________________________________ UNITED STATES OF AMERICA , Appellee ,
v. 20

- 3195 PERCY ARTURO VASQUEZ

- DREW, AKA SEALED DEFENDANT 1, Defendant

- Appellant , OSVALDO LONDON O

- VANEGAS, AKA SEALED DEFENDANT 2, VICTOR ROJAS

BASCOPE, Defendant s

. 1

_____________________________________

For Appellee : S AM A DELSBERG ( Matthew Hellman, David Robles, & Won S. Shin , on the brief ) , for Damian Williams, United States Attorney for the Southern District of New York , New York, NY

.

1 The Clerk of Court is directed to amend the caption as above.2 For Defendant

- Appellant :

As A micus C uriae :

For the Plurinational State of Bolivia
as Amicus Curiae : M ATTHEW B. L ARSEN , Federal Defenders of New York , New York, NY.

T ADHG D OOLEY (Emmett Gilles, on the brief ), Wiggin and Dana LLP, New Haven, CT.
Marcus A. R. Childress, Jenner & Block LLP , Washington, DC ( Nicole R. Allicock, Jenner & Block LLP , Washington, DC ; Anthony S. Barkow, Brian J. Fischer, Adina Hemley

- Bronstein, Jenner & Block LLP, New York, NY, on the brief ). Appeal from a judgment of the United States District Court for the Southern District of New York ( Denise L. Cote , Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the case is REMANDED for reassignment and resentencing before a new district judge

. Percy Arturo Vasquez

- Drew appeals from a judgment of the United States District Court
for the Southern District of New York ( Denise L. Cote , Judge ) convicting him, upon a guilty plea, of one count of conspiring to import narcotics into the United States in violation of 21 U.S.C. §§ 812, 959(a), 959(d), 960(a)(3), and 960(b)(1)(B)(ii) and sentencing him to 120 months’ imprisonment. We assume the parti es’ familiarity with the case. Vasquez argues, and the government agrees, that his sentence should be vacated because a
reasonable observer could interpret the district court’s comments at sentencing to suggest that the court improperly relied on his Bolivian nationality in determining punishment. Because the
government supports vacatur , we appointed Tadhg Dooley to defend the judgment below as

am icus curiae . He has ably discharge d his duties , and the Court thanks him for his service

. A t sentencing , the district court , noting that the undisputed facts suggested that Vasquez had taken part in “a very significant crime,” said that it was “ going t o impose a very long sentence3 on the defendant, principally motivated by concerns about appropriate punishment, but also general deterrence. ” App’x 53. “ It is important ,” the court continued, “ that the people in Bolivia
understand the kind of sentences t hat are potentially imposed here from engagement in activity to
send cocaine into America. ” App’x 53. “It has long been settled in this Circuit that although reference to national origin and naturalized status is permissible during sentencing, it is allo wed only so long as it does not become the basis for determining the sentence.” United States v. Kaba , 480 F.3d 152, 156 (2d Cir. 2007) (cleaned up)

. We review de novo “whether the district court improperly considered the defendant ’ s national origin.” Id . at 156

– 57. “[E]ven the appearance that the sentence reflects a defendant ’ s race or nationality will ordinarily require a remand for resentencing.” Id . at 156 ( quoti ng United States v. Leung , 40 F.3d 577, 586 (2d Cir. 1994) )

. In this case , w e are confident , as all the parties agreed, that the experienced district judge harbored no actual bias against Vasquez based on his nationality. At the sentencing hearing, t he

g overnment described Vasquez as part of “a network of military officials, airport security officials, and others” in Bolivia who worked together to send cocaine to the United States. App’x 44. It urged the court to demonstrate to “the defendant and others similarly situated” that drug dealers “who sell such poison from afar by lining the pockets of corrupt officials along the way will face significant consequences if and when they are caught.” App’x 44. The district court’s reference

to “ t he people in Bo livia” followed that request and may well have been intended to refer specifically to Vasquez’s fellow conspirators

. App’x 53

. Even so, o ur precedents constrain us to conclude that there is “a sufficient risk that a reasonable observer, hearing or reading” the district court’s remarks, “might infer, however incorrectly” that Vasquez’s nationality played a role in determining his sentence. Leung , 40 F.3d4 at 58 6

– 8 7 . Although we are c onfident that the district court could properly resentence Vasquez
on remand , the appearance of justice will be better satisfied by following our usual practice and assigning the resentencing to a different judge. See Kaba , 480 F.3d at 159.
We therefore REMAND the case to the district court for reassignment and resentencing before a new district judge

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk