19-4141-cr

United States v. Sepulveda

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 April, two thousand twenty-one.

PRESENT: ROBERT D. SACK,

RICHARD C. WESLEY,

STEVEN J. MENASHI,

Circuit Judges.

____________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 19-4141-cr

WILFREDO SEPULVEDA, AKA

DIONICIO DE LA CRUZ RODRIGUEZ

Defendant-Appellant.

____________________________________________
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For Appellee: KYLE A. WIRSHBA, Assistant United States 

Attorney (Elinor L. Tarlow, Anna M. 

Skotko, Assistant United States Attorneys, 

on the brief), for Audrey Strauss, United 

States Attorney for the Southern District of 

New York, New York, NY

For Appellant: YU HAN (Noam Biale, Michael Tremonte, on 

the brief), Sher Tremonte LLP, New York, NY

Appeal from a judgment of the United States District Court for the Southern 

District of New York (Sullivan, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Wilfredo Sepulveda appeals from his judgment of 

conviction in the United States District Court for the Southern District of New York 

for Hobbs Act Robbery, in violation of 18 U.S.C. § 1951; distributing and 

possessing with intent to distribute 40 grams or more of fentanyl, in violation of 

21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and distributing and possessing with intent to 

distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 

(b)(1)(A). The district court sentenced Sepulveda to 288 months’ imprisonment, 
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which exceeded the applicable range under the United States Sentencing 

Guidelines by 53 months, or roughly 4.5 years. On appeal, Sepulveda challenges 

the procedural and substantive reasonableness of his sentence. We assume the 

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

and the issues on appeal.

I

“We review sentencing decisions for procedural and substantive 

reasonableness.” United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019). Our review 

of a sentence is “akin to review for abuse of discretion, under which we consider 

whether the sentencing judge exceeded the bounds of allowable discretion, 

committed an error of law in the course of exercising discretion, or made a clearly 

erroneous finding of fact.” United States v. Corsey, 723 F.3d 366, 374 (2d Cir. 2013).

A district court commits procedural error if it fails to calculate the 

sentencing range recommended under the federal Sentencing Guidelines, makes 

a mistake in calculating the Guidelines range, or treats the Guidelines as 

mandatory. United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). The 

district court also commits procedural error if it fails to consider the sentencing 

factors listed in 18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous finding 
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of fact, or fails adequately to explain its sentence. Id. The court’s explanation of its 

sentence “must satisfy us that it has ‘considered the parties’ arguments’ and that 

it has a ‘reasoned basis for exercising its own legal decisionmaking authority.’” Id.

at 193 (quoting Rita v. United States, 551 U.S. 338, 356 (2007)) (alteration omitted). 

In addition, the court “must include ‘an explanation for any deviation from the 

Guidelines range,’” which requires the court to “say why [it] is doing so, bearing 

in mind ... that ‘a major departure from the Guidelines should be supported by a 

more significant justification than a minor one.’” Id. at 190, 193 (quoting Gall v. 

United States, 552 U.S. 50-51 (2007)) (alteration omitted).

“Once we have determined that the sentence is procedurally sound, we then 

review the substantive reasonableness of the sentence, reversing only when the 

trial court’s sentence ‘cannot be located within the range of permissible 

decisions.’” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quoting Cavera, 

550 F.3d at 189). At this stage of review, “an appellate court may consider whether 

a factor relied on by a sentencing court can bear the weight assigned to it.” United 

States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009). Because such review is 

“deferential,” it is not our place to “consider what weight we would ourselves 

have given a particular factor.” Id. Instead, “we consider whether the factor, as 
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explained by the district court, can bear the weight assigned it under the totality 

of circumstances in the case.” Id.

II

Applying these principles, we hold that Sepulveda’s sentence was 

procedurally and substantively reasonable. Sepulveda’s arguments to the contrary 

are without merit.

First, Sepulveda argues that his sentence was procedurally unreasonable 

because the district court “failed adequately to explain its substantial upward 

variance” from the Guidelines range. Appellant’s Br. 20. In fact, the district court 

provided a lengthy explanation for its decision to impose an above-Guidelines 

sentence, which included an extended discussion of the violent nature of the 

offense, Sepulveda’s long history of criminal conduct, the failure of previous 

punishments—including substantial terms of incarceration and deportation—to 

deter Sepulveda’s future criminal conduct, and that Sepulveda had on several 

occasions violently resisted arrest. The district court acted within its discretion to 

decide that these factors warranted an above-Guidelines sentence, and the district 

court’s explanation for its sentence “satisf[ies] us that it ... ‘considered the parties’ 

arguments’ and that it ha[d] a ‘reasoned basis for exercising its own legal 
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decisionmaking authority.’” Cavera, 550 F.3d at 193 (quoting Rita, 551 U.S. at 356) 

(alteration omitted).

Next, Sepulveda contends that the district court erred by imposing an 

above-Guidelines sentence based on factors for which the Guidelines already 

accounted, including the robbery, Sepulveda’s use of a firearm, and Sepulveda’s 

criminal history. But considering these factors was not error. Indeed, 18 U.S.C. 

§ 3553(a)(1) instructs judges to “consider ... the nature and circumstances of the 

offense” as well as “the history and characteristics of the defendant” when 

“determining the particular sentence to be imposed.” Moreover, a district court 

may “rely[] on a factor that is already incorporated into the Guidelines range to 

impose an above-Guidelines sentence” as long as it “articulate[s] specifically the 

reasons that this particular defendant’s situation is different from the ordinary 

situation covered by the Guidelines calculation.” United States v. Allen, 662 

F. App’x 80, 84 (2d Cir. 2016) (alteration omitted). The district court did so by 

emphasizing not only the facts that Sepulveda had committed a robbery, used a 

firearm, and had a criminal history, but that the robbery was particularly violent, 

that Sepulveda used a firearm to threaten an 83-year-old woman, and that 
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Sepulveda’s history of criminal conduct was both serious and indicated that less 

severe punishments had failed to deter him.

Additionally, the district court did not, as Sepulveda contends, ignore 

binding precedent when considering Sepulveda’s criminal history category. While 

the district court expressed disagreement with precedent under which Sepulveda 

could not be considered a “career offender” for federal sentencing purposes based 

on his prior narcotics convictions, the court affirmed that it would not find that 

Sepulveda was a career offender. The district court even disclaimed reliance on 

Sepulveda’s criminal history category altogether when imposing its sentence, 

focusing instead on Sepulveda’s past history of criminal conduct. The record thus 

confirms that the district court did not improperly designate Sepulveda as a career 

offender in derogation of binding precedent, nor did it rely on that designation in 

fixing its sentence.

Sepulveda further argues that the district court committed procedural error 

by considering acquitted conduct at sentencing. Specifically, Sepulveda claims 

that the court should not have considered his use of a firearm at sentencing

because the jury acquitted Sepulveda of the violation of 18 U.S.C. § 924(c) charged 

in the superseding indictment. Sepulveda argues that by considering acquitted 
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conduct at sentencing and justifying an enhanced sentence based on that conduct, 

the district court “undermine[d] the ‘unassailable’ finality of the jury’s verdict” 

and “violate[d] due process.” Appellant’s Br. 31 (quoting Yeager v. United States, 

557 U.S. 110, 123 (2009)). The Supreme Court has made clear, however, that “a 

jury’s verdict of acquittal does not prevent the sentencing court from considering 

conduct underlying the acquitted charge, so long as that conduct has been proved 

by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 

(1997). Here, the district court’s finding that Sepulveda used a firearm during the 

robbery was supported by a preponderance of the evidence—which included eyewitness testimony, the recovery of the firearm from the crime scene, and 

Sepulveda’s DNA on the firearm’s trigger and trigger guard—and thus did not 

violate due process. See id. at 156 (“[A]pplication of the preponderance standard 

at sentencing generally satisfies due process.”). And because “there is no logical 

inconsistency in determining that a preponderance of the evidence supports a 

finding about which there remains a reasonable doubt,” United States v. Vaughn, 

430 F.3d 518, 527 (2d Cir. 2005), the district court’s consideration of Sepulveda’s 

use of a firearm did not upset the finality of the jury’s verdict.
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We accordingly hold that Sepulveda’s sentence was procedurally 

reasonable.

III

We also hold that Sepulveda’s sentence was substantively reasonable. “Our 

review for substantive unreasonableness is ‘particularly deferential.’” United States 

v. Aldeen, 792 F.3d 247, 255 (2d Cir. 2005). “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, that is, when 

sentences are so shockingly high, shockingly low, or otherwise unsupportable as 

a matter of law that allowing them to stand would damage the administration of 

justice.” Id. (internal quotation marks omitted). As noted above, in assessing 

substantive reasonableness, we do not consider “what weight we would ourselves 

have given a particular factor” in fixing the defendant’s sentence but rather 

“whether the factor, as explained by the district court, can bear the weight 

assigned it under the totality of circumstances in the case.” Rigas, 583 F.3d at 122.

Sepulveda argues that his above-Guidelines sentence of 288 months’—or 24 

years—imprisonment is substantively unreasonable because it vastly exceeds the 

typical sentences imposed for defendants convicted of robbery in the same 
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criminal history category as Sepulveda. Assuming, arguendo, that the data on 

which Sepulveda relies is accurate, that disparity is not enough for us to determine 

that his sentence is substantively unreasonable. The question is whether the 

district court’s sentence “cannot be located within the range of permissible 

decisions.” Dorvee, 616 F.3d at 179.

We cannot say that the district court’s sentence fell outside the range of 

permissible decisions. The district court explained that an above-Guidelines 

sentence was warranted in light of Sepulveda’s long history of criminal conduct 

and the failure of his prior, shorter sentences and deportation to deter him from 

committing further crimes. That factor, combined with the violent nature of the 

instant offense, Sepulveda’s threatening of an elderly woman, and Sepulveda’s 

history of violently resisting arrest were sufficient—under our deferential 

standard of review—to justify the district court’s above-Guidelines sentence. In 

sum, we do not conclude that Sepulveda’s sentence, in light of those factors, was 

so “shockingly high” as to “damage the administration of justice.” Aldeen, 792 F.3d 

at 255.
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We have considered Sepulveda’s remaining arguments, which we conclude 

are without merit. For the foregoing reasons, we AFFIRM the judgment of the 

district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court