1 17-3162-cr United States v. Escobosa 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for th e Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 18 th day of October, two thousand nineteen.
Present: P IERRE N. L EVAL , D EBRA A NN L IVINGSTON , R AYMOND J. L OHIER , J R ., Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 17-3162-cr
L UIS E SCOBOSA , Defendant-Appellant

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_____________________________________ For Defendant-Appellant: R OLAND R. A CEVEDO , Law Office of Roland R. Acevedo, New York, NY For Appellee: K EVIN T ROWEL , Assistant United States Attorney (Samuel P. Nitze and Tanya Hajjar, Assistant United States Attorneys, on the brief ), for Richard P. Donoghue, United States Atto rney for the Eastern District of New York, Brooklyn, NY2 Appeal from a judgment of th e United States District Court for the Eastern District of New York (Kuntz, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART, VACATED IN PART, and REMANDED

. Luis Escobosa appeals from a September 27, 2017 judgment imposing a sentence of eighty-seven months’ impr isonment and five years of supervised release. Escobosa pleaded guilty to one count of possession of child pornography. He now challenges the reasonableness of the sentence, the imposition of three conditions of supervised release, and the effectiveness of his sentencing counsel. We assume the parties’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal.
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I. Reasonableness of the Sentence “We review the [sentencing] work of district courts under a ‘deferential abuse-of-discretion standard.’” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States , 552 U.S. 38, 41 (2007)). “Thi s form of appellate scrutiny encompasses two components: procedural review and substantive review.” Id. As relevant here, “[a] district court commits procedural error where it . . . ma kes a mistake in its Guidelines calculation, or . . . rests its sentence on a clearly err oneous finding of fact.” Id. at 190. As to the second component, “[w]e will . . . set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’” Id. at 189 (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)).3 Escobosa’s claim of procedural unreasonableness is predicat ed on two statements in the Presentence Investigation Report (“ PSR”) that he asserts were a dopted as factua l findings by the district court: (1) that Escobosa failed to repo rt that his stepfather had a child pornography conviction; and (2) that Escobosa told another offender “during a group therapy session that he created a website that allows individuals to acc ess child pornography for a fee; and that he can bypass the monitoring software pla ced by Pretrial Services on [his ] monitored computer.” A. 294. 1 Escobosa concedes that any chal lenge to the first of these tw o facts is reviewed for plain error because he did not object to it below. “For plain error, we must find (1) error, (2) that is plain, and (3) that affects substan tial rights; if these three conditions are met, we have discretion to notice the forfeited error only if (4) the error seriously affects the fairness, inte grity, or public reputation of judicial proceedings.” United States v. Dorvee , 616 F.3d 174, 180 n.2 (2d Cir. 2010). Even if the district court found that Esc obosa failed to report his stepfather’s conviction, such a finding was not clearly erroneous. Escobosa concedes that he did not tell the court at his bail hearing or Pretrial Services at any of their meeti ngs about his stepfather’s conviction. He merely discounts the importa nce of this omissi on, noting that he apprised a Special Agent of the Federal Bureau of Investigation (“FBI”) of his stepfather’s c onviction during the FBI investigation leading to his conviction and so wa s not attempting to con ceal the information. Yet even if Escobosa had raised this argument below, the district court would not have been required to draw the infere nce Escobosa now proffers. See United States v. Krcic , 186 F.3d 178, 181 (2d Cir. 1999) (noting that inferences, if supported by evidence, usually will not

1 The government argues that the district court neve r affirmatively adopted these statements in the PSR as factual findings. For the reasons stated herein, we need not resolve this question but will assume, arguendo , that the district court made the factual findings relied upon by Escobosa.4 amount to clearly erroneous fa ct finding). In such circ umstances, Escobosa has not demonstrated plain error. As to the second set of facts, assuming the district court made a fact ual finding as to statements made by Es cobosa in therapy, it did not rely on those statem ents at sentencing. See United States v. Jass , 569 F.3d 47, 68 (2d Cir. 2009) (where “t he record indicates clearly that the district court would have imposed the same se ntence in any event, the error may be deemed harmless” (quotation marks omitted)). The district court only mentioned the statements made in therapy once in its thorough statement of r easons, as part of a summary of a memorandum prepared by Pretrial Services. The court’s pr imary focus when discussing the need for the sentence imposed on Escobosa was his violatio n of bail conditions—conduct that Escobosa does not deny and which is independent of his statements in thera py. Thus, based on the record considered as a whole, any erro r in considering the allegations regarding Escobosa’s statements was harmless. Escobosa also contends that the district court incorrectly treated his sentencing range under the U.S. Sentencing Guidelines, U.S.S.G. §§ 2G2.2 and 3E1.1, (his “Guidelines range”) as 78 to 87 months’ imprisonment. We disagree. Again, based on the record considered as a whole, the district court’s stray reference to that range was a misstatement, not an actual error. Indeed, the district court repeat edly referred to the correct range throughout the hearing. There is no merit to Escobosa’s asser tion that the district court wa s under a misimpression as to the Guidelines range. We also reject Escobosa’s substantive unreaso nableness claim. The district court did not make the same mist akes highlighted in Dorvee or United States v. Jenkins , 854 F.3d 181, 191 (2d Cir. 2017). The district court did not suggest that Escobosa was likely to sexually assault a5 child, it specifically explained why a substantial se ntence was appropriate, and it applied each of the factors under 18 U.S.C. § 3553(a) without refere nce to the statutory maximum. The district court also explained that a hi gher sentence based on Escobosa’s “disregard for the law” was warranted given his failure to comp ly with his bail conditions, A. 533 , and that his conduct was not less culpable than other similarly situated de fendants. Moreover, the district court issued a Guidelines sentence, albeit at the top of the Gu idelines range. While “we do not presume that such sentences are reasonable,” Dorvee , 616 F.3d at 183, “[w]e r ecognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasona ble in the particular circumstances,” United States v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006). Indeed, we have upheld numerous sentences that are comparable to Escobosa’s for similar conduct. See, e.g. , United States v. Chow , 441 F. App’x 44, 46 (2d Cir. 2011) (upholding 84-month se ntence for attempted receipt and possession of child pornography); United States v. Ryan , 406 F. App’x 565, 566–68 (2d Cir. 2011) (90 months for transportation of child pornography). Thus, Escobos a’s sentence does not fall outside “the range of pe rmissible decisions.” Rigas , 490 F.3d at 238 (quotation marks omitted).

II. Supervised Release Conditions Escobosa next challenges Special Conditions 4 (“The defendant will not associate with any child(ren) under the age of 18, un less a responsible adult is pres ent and he has prior approval from the Probation Department.”), 5 (“If the defe ndant cohabits with an individual who has minor children, the defendant will in form that other party of his pr ior criminal history concerning his sex offense. Moreover, he will notify the party of [Condition 4].”), and 8 (“The defendant shall notify his employer of his offense, if the job employs min ors or requires access to the Internet.”). S.A. 5. The government concedes that Esco bosa never received notice of the6 challenged conditions and that the district court failed to provide an explanation of why these conditions are reasonably necessary. See United States v. Bleau , 930 F.3d 35, 42–43 (2d Cir. 2019); United States v. Betts , 886 F.3d 198, 202 (2d Cir. 2018). Accordingly, we vacate and remand these conditions for recons ideration with instru ctions that the district court either eliminate these conditions or provide a statemen t of reasons as to the challenged conditions.
III. Ineffective Assistance of Counsel Finally, Escobosa argues that counsel during his bail revocation and sentencing was ineffective. “[I]n most cases a motion brought under § 2255 is pref erable to direct appeal for deciding claims of ineffective assistance” becau se the record was “not developed precisely for the object of litigating or preserving the claim a nd thus [is] often incomp lete or inadequate for this purpose.” Massaro v. United States , 538 U.S. 500, 504–05 (2003). The record lacks “any comment from [Escobosa’s] attorne y,” indicating that it is “unwis e to consider an ineffective assistance claim on direct review,” United States v. Vilar , 729 F.3d 62, 98 (2d Cir. 2013), and we see no reason to depart from the general rule that “the assertedly ineffective atto rney” should be afforded “an opportunity to be heard and to present evidence,” Sparman v. Edwards , 154 F.3d 51, 52 (2d Cir. 1998) (per curiam); see also United States v. Williams , 205 F.3d 23, 35–36 (2d Cir. 2000). Accordingly, we dismiss Escobosa’s in effective assistance of counsel claim without prejudice to renewal in a peti tion pursuant to 28 U.S.C. § 2255. We have considered Escobosa’s remaining arguments and find th em to be without merit. Accordingly, we AFFIRM IN PART, VACATE IN PART, and REMAND the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk