14-1210 

United States v. Baires

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 

ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 

2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 29th 3 day of January, two thousand sixteen. 

4 

5 PRESENT: 

6 GUIDO CALABRESI,

7 GERARD E. LYNCH, 

8 RAYMOND J. LOHIER, JR.,

9 Circuit Judges. 

10 _____________________________________ 

11 

12 UNITED STATES OF AMERICA,

13 Appellee,

14 

15 v. No. 14-1210-cr

16 

17 JOSE BARRERA, AKA Travieso, KEVIN 

18 CARDONA, AKA Stalker, RUDY 

19 GUEMBES-LORENA, AKA Darky, CARLOS 

20 HERNANDEZ, AKA Morro, ABRAHAM 

21 IRAHETA, AKA Lobo, ALEX MACHADO, 

22 AKA Negro, CHRISTIAN MERINO, AKA 

23 Casper, NELSON QUINTEROS, AKA Sonic,

24 Defendants,

25 

26 WILBER BAIRES, AKA Doofy,

27 Defendant-Appellant,

28 ____________________________________ 
2 

1 FOR APPELLEE: DARREN A. LAVERNE, Assistant 

2 United States Attorney (Susan Corkery, 

3 Assistant United States Attorney, on the 

4 brief), for Robert Capers, United States 

5 Attorney for the Eastern District of New 

6 York, New York, NY. 

7 

8 FOR DEFENDANT-APPELLANT: DANIEL S. NOOTER, Washington, DC. 

9 

10 Appeal from the United States District Court for the Eastern District of New York 

11 (William F. Kuntz, II, Judge). 

12 

13 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, 

14 AND DECREED that the judgment of the district court is REMANDED for further 

15 proceedings consistent with this order. 

16 Defendant-Appellant Wilber Baires appeals from a judgment of conviction entered 

17 on April 16, 2014 in the United States District Court for the Eastern District of New York 

18 after he pled guilty to conspiracy to commit assault with a dangerous weapon in aid of 

19 racketeering, in violation of 18 U.S.C. § 1959(a)(6). Baires challenges his sentence, 

20 which was above the advisory U.S. Sentencing Guidelines range, as both procedurally and 

21 substantively unreasonable. We assume the parties’ familiarity with the underlying facts 

22 and procedural history of the case. 

23 Baires and nine codefendants were charged in an indictment alleging activities 

24 relating to a chapter of the Mara Salvatrucha (“MS-13”) gang. Baires himself was named 

25 only in a single count charging conspiracy to assault members of a rival gang with 

26 dangerous weapons from 2007 through 2011. According to the Presentence Investigation 

27 Report (“PSR”), Baires participated in planning an attack on members of a rival gang in 
3 

1 January 2011; the plan was forestalled by the police, and the attack was never carried out. 

2 Although no other specific incidents were mentioned in the PSR, Baires allocuted more 

3 generally to agreeing with other MS-13 members to assault members of rival gangs during 

4 the period charged. The PSR calculated the applicable guidelines range as 24 to 30 

5 months, and neither the PSR nor the government suggested any reason to impose a 

6 sentence in excess of that range. The district court adopted the PSR’s factual statements 

7 and guidelines analysis, but nevertheless imposed an above-guidelines sentence of 36 

8 months’ imprisonment, the maximum possible sentence under the statute. 

9 At the sentencing hearing, the district court stated only the following rationale for 

10 the sentence: “Given the nature of the offense and your circumstances this court imposes a 

11 sentence of 36 months. That appears to be sufficient but not greater than necessary to 

12 comply with the purposes set forth in 18 U.S.C. Section 3553(a).” The court did not 

13 discuss any particular § 3553(a) factors, identify any particular factual findings that formed 

14 the basis for its decision to impose a sentence above the guidelines range, or articulate a 

15 rationale for the sentence chosen. 

16 We review the reasonableness of a sentence under a “deferential abuse-of-discretion 

17 standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A district court commits 

18 procedural error where it fails to calculate (or improperly calculates) the Sentencing 

19 Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 

20 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails 
4 

1 adequately to explain the chosen sentence.” United States v. Morrison, 778 F.3d 396, 399 

2 (2d Cir. 2015) (alteration in original), quoting United States v. Robinson, 702 F.3d 22, 38 

3 (2d Cir. 2012). A district court is required, under 18 U.S.C. § 3553(c), to “state in open 

4 court the reasons for its imposition of [a] particular sentence.” Baires challenges the 

5 procedural reasonableness of his sentence because the district court did not adequately 

6 explain its reasons for imposing the sentence, which exceeds the highest point of the 

7 applicable guidelines range. 

8 We conclude that the district court plainly did not meet its obligation to state its 

9 reasons for imposing its sentence, particularly one that exceeds the guideline 

10 recommendation. Because Baires did not raise the error at sentencing, we review only for 

11 plain error, United States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012), for which we may 

12 reverse only if we find that an error affects a defendant’s substantial rights. We have held 

13 that when the district court’s statements at sentencing provide an insufficient basis for a 

14 reviewing court to determine the reason that the district court imposed the sentence, that 

15 error affects a defendant’s substantial rights. United States v. Lewis, 424 F.3d 239, 247 

16 n.5 (2d Cir. 2005). See also United States v. Fama, __ F. App’x __, 2016 WL 277750 (2d 

17 Cir. Jan. 22, 2016). Certainly where, as here, the district court gave absolutely no 

18 indication as to its reasons for the sentence imposed, we have no meaningful basis upon 

which to review the reasonableness of the sentence.1 19 

 

1

 Baires also challenges his sentence as substantively unreasonable. Absent an explanation of the 

reasons why the sentence was imposed, we cannot (and thus do not) evaluate that claim. 
5 

1 Moreover, the failure to explain a sentence can “seriously affect the . . . public 

2 reputation of judicial proceedings,” United States v. Olano, 507 U.S. 725, 736 (1993) 

3 (internal quotation marks and alteration omitted). The failure to explain a sentence leaves 

4 the public, and the defendant, in the dark about why a particular punishment is imposed; 

5 particularly when the sentence is outside the norm, unwarranted speculation that the 

6 sentence may have been chosen for inappropriate reasons may be unnecessarily 

7 encouraged. 

8 Accordingly, we remand with instructions to vacate Baires’s sentence and conduct 

9 resentencing proceedings. In view of the time that has passed since the sentence was 

10 imposed, and the relatively short time remaining on the sentence, we expect the district 

11 court to proceed with the utmost expedition in resentencing. In the interest of such 

12 expedition, this panel will retain jurisdiction over any subsequent appeal, see United States 

13 v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), and should there be such an appeal, the parties 

14 should request expedited briefing and argument. Accordingly, the judgment of the district 

15 court is REMANDED for further proceedings consistent with this order. The mandate 

16 shall issue forthwith. 

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk