20

- 966

- c r United States of America v. Barrera 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 A NY 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 9 th day of February, two thousand twen ty

- one
. PRESENT: JOHN M. WALKER , JR. , RICHARD C. WESLEY , WILLIAM J. NARDINI , Circuit Judges

.

_______________________________________ UNITED STATES OF AMERICA , Appellee ,

v. No. 20

- 96 6
EMILIO ALEJANDRO BARRERA , Defendant

- Appell ant

.

_______________________________________

FOR APPELL EE : D ANIELLE M. K UDLA (Danielle R. Sassoon, on the brief ), Assistant United States Attorneys , for Audrey Strauss, Acting United States Attorney, Southern District of New York, New York, NY.
FOR DEFENDANT

- APPELL ANT : M ARK G OMBINER ( Colleen P. Cassidy , on the brief ), Federal Defenders of New York, Inc., New York, NY

.2 On a ppeal from the United States District Court for the Southern District of New York ( Jed
S. Rakoff , J

. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the d istrict c ourt is AFFIRMED

. Defendant

- Appellant Emilio Alejandr o Barrera appeals from a judgment of conviction
entered on March 9 , 2020 , by the district court. On October 30, 2019 , Barrera ple a d ed guilty to one count of illegally reentering the United States following removal subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The district court sentenced Barrera principally to 24 months in prison
. We assume the reader’s familiarity with the
record and issues in this case

. Barrera argues that his sentence is procedurally unreasonable because the district court
based its sentencing analysis in part on dismissed narcotics charges. He cites United Sta tes v.
Juwa , in which this Court held that, “at sentencing, an indictment or a charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed.” 508 F.3d 694, 701 (2d Cir. 2007)

. In reviewing the procedural reasonableness of a criminal sentence, this Court generally
uses “ a deferential abuse

- of

- discretion standard.” United States v. Yilmaz , 910 F.3d 686, 688 (2d Cir. 2018). Here, however, the Government asks the Court t o review Barrera’s argument for plain error, the standard of review applicable to claims of error not raised in the district court. See United
States v. Rosa , 957 F.3d 113, 117 (2d Cir. 2020) (“We review for plain error where .

. . the
defendant failed to raise [an] objection below.”). We conclude that Barrera adequately preserved3 his objection below by protesting as soon as the district court first mentioned the charges at issue , triggering an extensive discussion between the Government and the district court on the propriety of considering the charges at sentencing

. Accordingly, we apply our traditional abuse

- of

discretion standard to Barrera’s claim.
Even under this usual standard, there was no procedural error. The district court expressly
d eclined to consider the narcotics charges at issu e
. Barrera mischaracterizes the sentencing transcript in claiming that the court subsequently changed its mind. The transcript reflects only a n exchange in which the district court clarified the Government’ s position regarding consideration of the charges , not its own view. The court’s statements did not suggest that it was giving any weight to the dismissed narcotics charges.
We have considered Barrera’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the order of the d istrict c ourt is AFFIRMED

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