22-1145-cr

United States v. Alvarez-Espinal

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 TO 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 6th day of October, two thousand twenty-three.

PRESENT:

JOSEPH F. BIANCO,

EUNICE C. LEE,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

United States of America,

Appellee,

v. 22-1145-cr

Joel Alvarez-Espinal, AKA Sealed Defendant 1,

Defendant-Appellant.

_____________________________________

FOR DEFENDANT-APPELLANT: Darrell Fields, Of Counsel, Federal Defenders 

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

NY.

FOR APPELLEE: Matthew R. Shahabian, Hagan Scotten,

Assistant United States Attorneys, for Damian 

Williams, United States Attorney for the 

Southern District of New York, New York, NY.
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Appeal from a judgment of the United States District Court for the Southern District of 

New York (Cote, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Defendant-appellant Joel Alvarez-Espinal appeals from the district court’s judgment,

entered on May 17, 2022, following his guilty plea to illegal reentry into the United States after 

having been removed from the United States subsequent to conviction for an aggravated felony, 

in violation of 8 U.S.C. § 1326(a) and (b)(2). On May 17, 2022, the district court sentenced him 

to sixty-four months’ imprisonment, to be served concurrently with his state sentence for criminal 

sale of a controlled substance, to be followed by three years of supervised release. On appeal, 

Alvarez-Espinal challenges the substantive reasonableness of his sixty-four-month sentence. We 

assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, 

to which we refer only as necessary to explain our decision to affirm.

We review this challenge to the substantive reasonableness of the sentence under a 

deferential abuse-of-discretion standard. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 

766 (2020); accord United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam). “A 

sentencing judge has very wide latitude to decide the proper degree of punishment for an individual 

offender and a particular crime.” United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en 

banc). This Court does not “substitute [its] own judgment for the district court’s on the question 

of what is sufficient to meet the § 3553(a) considerations in any particular case but will instead set 

aside a district court’s substantive determination only in exceptional cases where the trial court’s 
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decision cannot be located within the range of permissible decisions.” United States v. Ingram, 

721 F.3d 35, 37 (2d Cir. 2013) (per curiam) (internal quotation marks and citation omitted). Our 

review provides “a backstop for those few cases that, although procedurally correct, would 

nonetheless damage the administration of justice because the sentence imposed was shockingly 

high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 

F.3d 108, 123 (2d Cir. 2009). Moreover, although there is no presumption that a sentence within 

the Guidelines range is reasonable, this Court has stated “that in the overwhelming majority of 

cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would 

be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d 

Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007).

Alvarez-Espinal argues that his sentence is substantively unreasonable because the term 

of imprisonment “is greater than necessary given the relevant sentencing factors, including the 

nature and circumstances of the offense . . . and his history and characteristics.” Appellant’s Br. 

at 26 (internal quotation marks omitted). Additionally, he contends that the district court should 

not have relied upon the illegal reentry Guideline, U.S.S.G. § 2L1.2, because it is “harsh and 

arbitrary” and “yielded an unreasonable sentencing range in this case.” Id. at 34. As set forth 

below, we conclude that the district court’s imposition of a sixty-four-month sentence, which is 

below the applicable advisory Guidelines range of seventy to eighty-seven months’

imprisonment, was well within the district court’s discretion and is substantively reasonable.

First, Alvarez-Espinal contends that his sentence would have been lower if the district court 

had properly considered the mitigating factors under 18 U.S.C. § 3553(a). For example, with 

respect to “the nature and circumstances of the offense,” he noted to the district court that, although 
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he was involved in selling drugs after illegally returning to the United States and was serving a 

four-year term for his New York State conviction arising from that conduct, the conduct “did not 

involve any weapons or violence.” App’x at 28. Concerning his “history and characteristics,” he 

asserted that he “returned to the United States seeking economic opportunity so that he could better 

support his mother in the Dominican Republic” and “be more present for his 17-year-old son, . . . 

living in Yonkers.” App’x at 24. Furthermore, he maintained that the pandemic made his 

confinement harsher than usual. 

Contrary to Alvarez-Espinal’s argument, the record reflects that the district court 

considered the nature and circumstances of the offense and his history and characteristics. 

Although his criminal conduct upon illegally re-entering the United States did not involve weapons 

or violence, the district court placed significant weight on the fact that he “has a series of drug 

convictions,” and after “[h]e was removed from this country in 2018” for committing a federal 

narcotics offense, “[h]e returned illegally.” App’x at 64. In addition, although Alvarez-Espinal 

noted that he returned to the United States to seek economic opportunity to care for his mother and

be closer to his son, the district court pointed out that, upon return, he “was arrested by the NYPD 

[for] having returned to drug activity.” Id. The district court emphasized that these were “the 

critical factors” in the case. Id. Moreover, the district court explicitly acknowledged that the

pandemic made his conditions of confinement harsher than usual and, thus, also considered that 

argument.

Although Alvarez believes the mitigating factors warranted a lower sentence, “[t]he 

particular weight to be afforded aggravating and mitigating factors is a matter firmly committed 

to the discretion of the sentencing judge,” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 
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2012) (internal quotation marks and citation omitted), and we generally do “not second guess the 

weight (or lack thereof) that the judge accorded to a given factor,” United States v. Pope, 554 F.3d 

240, 247 (2d Cir. 2009) (internal quotation marks and citation omitted). Here, the district court 

acted within its discretion in determining that the Section 3553(a) factors warranted a sixty-fourmonth sentence.

We similarly disagree with Alvarez-Espinal’s contention that his sentence is substantively 

unreasonable because the district court did not adequately consider that the “application of 

[U.S.S.G. § 2L1.2],” as amended in 2016, “in this case was unduly harsh because of how greatly 

his prior (nonviolent) crimes enhanced the offense level.” Appellant’s Br. at 29. At sentencing, 

the district court explicitly acknowledged consideration of this argument for a variance. See App’x 

at 63 (“The defendant also makes an argument for a variance . . . because [he] contends that the 

calculation of the sentencing guidelines has been done with double-counting—that the same facts 

are driving both the offense level and the criminal history category.”). Separately, in recognition 

of the interplay between the federal offense and his most recent state conviction, the district court

downwardly departed from the Guidelines range by six months (because Alvarez-Espinal was not 

going to receive credit for time he had already spent in federal custody while serving his four-year 

state sentence), and also ran this federal sentence concurrently with that state sentence. 

Alvarez-Espinal maintains the district court abused its discretion because it should have 

varied downward (even further) because of the double-counting issue and because U.S.S.G. 

§ 2L1.2 (as amended) is “eccentric” and “can increase the sentencing ranges for noncitizens” in a 

“harsh and arbitrary manner.” Appellant’s Br. at 29, 34. We disagree. As a threshold matter, we 

have explained, in an unpublished opinion, that “[u]nlike the child pornography Guideline at issue 
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in [United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)], which was amended by Congress 

without Commission consultation, the illegal reentry Guideline was amended by the Sentencing 

Commission after a multi-year study and extensive data collection and analysis.” United States v. 

Greenland, 790 F. App’x 234, 237 (2d Cir. 2019) (summary order). Moreover, we noted that “the 

Sentencing Commission ‘fills an important institutional role,’ especially when it ‘bases its 

determinations on empirical data and national experience’” and that “it was not inappropriate for 

the district court to consider the Commission’s evidence-based guidelines.” Id. (quoting 

Kimbrough v. United States, 552 U.S. 85, 109 (2007)). Alvarez-Espinal has failed to persuasively 

argue that our analysis in Greenland, albeit non-binding, was incorrect. In short, under Kimbrough

v. United States, “while the district court may depart from the Guidelines based on a policy 

[disagreement], the district court may also determine that the Guidelines range is appropriate in a 

particular case.” United States v. Gouse, 468 F. App’x 75, 77 (2d Cir. 2012) (summary order) 

(affirming district court decision not to vary from the child pornography Guidelines); see also 

United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009) (“Kimbrough does not require a 

district court to reject a particular Guidelines range where that court does not, in fact, have 

disagreement with the Guideline at issue.”). Nor is the district court required to explain its 

reasoning for rejecting any policy-based challenge to a Guidelines provision. See United States v. 

Thomas, 628 F.3d 64, 72 (2d Cir. 2010) (“[W]e have rejected the notion that a district court must 

respond specifically to even a non-frivolous argument concerning a policy disagreement with a 

Guidelines enhancement.”); United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010) (same). 

Therefore, the district court’s reliance on the illegal reentry Guideline provision in this case was 

not unreasonable. 
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In sum, based upon the record in this case, we conclude that a sentence of sixty-four 

months’ imprisonment was not “shockingly high,” Rigas, 583 F.3d at 123, and we find no basis to 

disturb the sentence on substantive reasonableness grounds. 

* * *

We have considered Alvarez-Espinal’s remaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court