1

12

- 2574

- cr United States v. Echeverri

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 gover ned 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 17 th day of May , two thousand thirteen.

PRESENT:

P IERRE N. L EVAL

, J OSÉ A. C ABRANES

, B ARRINGTON D. P

ARKER

, Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x U NITED S TATES OF A MERICA

,

Appellee

,

- v.

- No. 12

- 2574

- cr

C ARLOS E CHEVERRI

, also known as c4p3t069@gmail.com, also known as capeto69@yahoo.com, also known as cape266@hotmail.com, also known as capeto66@hotmail.com, also known as Carlos Millan, also known carpetin69@yahoo.com, c4b3tco69@gmail.com,

Defendant

- Appellant

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

FOR DEFENDANT

- APPELLANT: C OLLEEN P. C ASSIDY , Federal Def

enders of New York, Inc., Appeals Bureau, New York,

NY.2

FOR APPELLEE: K ARIN O RENSTEIN

, Emily Berger, Assistant

United States Attorneys

, for Loretta E. Lynch, United States Attorney, United States Attorney’s Office for the Eastern District of New York, Brooklyn, NY.

Appeal from the amended judgment of the United States District Court for the Eastern
District of New York, imposed May 17, 2012, and filed May 31, 2012 (Sterling Johnson, Jr., Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the cause be REMANDED to the District Court (Sterling Johnson, Jr.,
Judge ) with instructions to vacate the amended sentence and to resentence the defendant

.

Defendant Carlos Echeverri was convicted, after entering a plea of guilty, of re ceipt and
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(b). In his first appeal
of his sentence, he argued that the District Court provided insufficient explanation of its chosen
sentence. We agreed and vacated his sente nce and remanded for resentencing. He now brings a
second appeal, arguing that procedural defects in his resentencing proceeding require us, once again,
to vacate and remand for resentencing. Once again, we must agree. We assume fa miliarity with the
underlying facts and procedural history of this case.

BACKGROUND

On January 20, 2010, Echeverri pleaded guilty, without a plea agreement, to one count of
receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) , and to one c ount of possessing
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On December 20, 2010, at his first
sentencing, the District Court denied Echeverri’s request for a below

- Guidelines sentence. Instead,

the court determined that “a sentence t hat is sufficient but not greater than necessary to address this
particular crime is the low end of the guideline.” Joint App’x 66. The court imposed a prison
sentence of 97 months, which was the bottom of what both parties agreed was the correct

Guideli nes range.

Echeverri then appealed, “argu[ing] that the sentence must be vacated because the district
court conducted no independent analysis of the sentencing factors and Guidelines enhancements
and failed to give specific reasons for imposing the sente nce. ” United States v. Echeverri , 460 F. App’x
54, 55 (2d Cir. 2012). We concluded that “ the district court did not provide any additional reasons

for its chosen sentence ,” and therefore “ ‘ fail[ed] adequately to explain its chosen sentence.’ ” Id. at 56
(quoting United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008)). We emphasized that, in light of

our decision in United States v. Dorvee , 616 F.3d 174, 185

- 86 (2d Cir. 2010), a sentencing court must
take particular care “ to independently evaluate the enhancements in his particular case ” relating to3

child pornography. Echeverri , 460 F. App’x at 56. Accordingly, we vacated Echeverri’s sentence and
remanded to the District Court for resentencing.

At resentencing, the District Court stated that “[t]his case was remanded from the Court of
Appeals with instructions for the Court to adequately explain its chosen sentence, which I will do.”
Joint App’x 100. The District Court proceeded to explain its Guidelines calculus in detail and

resentenced Echeverri to 97 months in prison. At the conclusion of the proceeding, the
government asked the court to “comment briefly on why this chosen sentence is correct, in addition

to the Guidelines calculation.” Id. at 104

- 05. The court responded:

I’ ve consulted 3553 (a), recognizing that the Guidelines are advisory, and I

think that some of the reasons, like 3553(a)(2) (a), talks about the sentence is supposed to reflect the seriousness of the offense. And 3553(a)(2) (b) is supposed to

afford deterrence for criminal co nduct.

And here, the defendant possessed a video lasting longer than five minutes, which is an aggravating factor itself. The defendant showed images involving ropes and binding, that the images and included minors under the age of 12.

The defendant spend a hundred dollars a month on subscriptions to child pornography, and he had a job

— I think it was as a lifeguard, and he was paid $8 to $12 an hour, which is a substantial portion of his salary. And the defendant for a period of six years spent three hour s per week viewing modeling sites.

The defendant was evaluated and he was cleared to be a moderate risk to the community, but there was a high risk of re

- offense on the internet. That is the

reason.

Id. at 105. The District Court did not ask Echeverri if he wished to make a statement.

DISCUSSION

Echeverri now argues that the District Court “did not afford [him] an opportunity to speak,
as is required by Rule 32.” Appellant’s Br. 20 (referring to Fed. R. Crim. P. 32). 1 The government
agrees, Appellee’ s Br. 16

- 20, as do we.

However, upon review of the transcript of Echeverri’s resentencing, it is also clear that the
District Court and the parties misunderstood our prior order as effecting a limited remand for the
purpose of further explanation of the chosen sentence, rather than as requiring a full resentencing.
The District Court did not pronounce a new sentence, but rather provided reasons for the sentence

1 In relevant part, Federal Rule of Criminal Procedure 32 requires a sentencing court to “ address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence .” Fed. R. Crim.

P. 32(i)(4)(A)(ii).4

that had been previously vacated. Echeverri , 460 F. App’x at 56. We have no cho ice but to remand
again for a full resentencing, because “ when a sentence has been vacated, the defendant is placed in
the same position as if he had never been sentenced. ” United States v. Maldonado , 996 F. 2 d 598, 599
(2d Cir. 1993).

In remanding for r esentencing, we note that the District Court must, as we indicated in our
previous order, “independently evaluate the enhancements in [this] particular case” and explain why

it has selected whatever sentence i t choose s to impose

. See Echeverri , 460 F. App ’x at 56. As we
explained in Dorvee , especially in consideri ng sentences under U.S.S.G. § 2G2 .2, district courts may
not presume that a sentence falling within the Guidelines range satisfies the requirements of 18

U.S.C. § 3553(a), including the parsimony clause. 616 F.3d at 182

- 83 , 188

. The District Court must
carefully consider and explain the sentence in relation to the purposes of sentencing.

Although the parties agree that we must remand for resentencing, they disagree as to who

should serve as th e resentencing judge. Echeverri would like us to remand to a new judge for
resentencing, while the government contends that reassignment is not warranted. In this case, the
failure to conduct a full resentencing was an honest mistake by an experienced , a ble, and respected
judge. We are confident that on remand the District Court will conduct a full resentencing, in
compliance with all procedural requirements. In short, we have no reason to think reassignment is
justified

. See United States v. Robin , 55 3 F.2d 8, 10 (2d Cir. 1977) (“ Absent proof of personal bias

requiring recusation,

. . . the principal factors considered by us in determining whether further
proceedings should be conducted before a different judge are (1) whether the original judge would
reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind
previously

- expressed views or findings determined to be erroneous or based on evidence that must
be rejected, (2) whether reassignment is advisable to prese rve the appearance of justice, and (3)
whether reassignment would entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness. ”).

CONCLUSION

We have revi ewed the record and the parties’ arguments on appeal. For th e reasons set out
above, we REMAND the cause to the District Court (Sterling Johnson, Jr., Judge ) with instructions

to vacate the amended sentence and to resentenc e the defendant

.

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