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09-0433-cr

USA v. Plata-Zuniga

1 UNITED STATES COURT OF APPEALS

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3 FOR THE SECOND CIRCUIT

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5 S U M M A R Y O R D E R

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7 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

8 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS

9 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE

10 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY

11 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

12 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

13 NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

14 SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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16 At a stated term of the United States Court of Appeals for

17 the Second Circuit, held at the Daniel Patrick Moynihan United

18 States Courthouse, 500 Pearl Street, in the City of New York, on

19 the 17 day of February, two thousand ten. th

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21 Present: 

22 JON O. NEWMAN,

23 RALPH K. WINTER,

24 REENA RAGGI,

25 Circuit Judges.

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30 UNITED STATES OF AMERICA,

31 Appellee,

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34 v. No. 09-0433-cr

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37 JUAN ALEJANDRO PLATA-ZUNIGA,

38 Defendant-Appellant.

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45 APPEARING FOR APPELLANT: David J. Goldstein, Goldstein &

46 Weinstein, Bronx, New York.

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48 APPEARING FOR APPELLEE: Lev L. Dassin, Acting United States

49 Attorney for the Southern District

50 of New York (Mark D. Lanpher and

51 Katherine Polk Failla, Assistant

52 United States Attorneys, of

53 counsel), New York, New York.

54
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1 Appeal from the January 30, 2009 judgment of the 

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3 United States District Court for the Southern District of New 

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5 York (Batts, J.).

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7 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND

8 DECREED that the order of the district court is AFFIRMED.

9 Juan Plata-Zuniga appeals from the sentence imposed by Judge

10 Batts following his guilty plea to a charge of illegal reentry

11 into the United States. 8 U.S.C. §§ 1326(a), (b)(2). We assume

12 the parties’ familiarity with the facts and various proceedings

13 in this court and the district court.

14 We review a district court’s sentence under a “deferential

15 abuse-of-discretion standard.” See United States v. Cavera, 550

16 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United

17 States, 552 U.S. 38, 41 (2007)) (internal quotation marks

18 omitted). We review for procedural or substantive error. 

19 Cavera, 550 F.3d at 189. We find procedural error where a

20 district court “fails to calculate the Guidelines range . . . 

21 [,] makes a mistake in its Guidelines calculation, . . . treats

22 the Guidelines as mandatory[,] . . . does not consider the §

23 3553(a) factors, or rests its sentence on a clearly erroneous

24 finding of fact.” Id. at 190 (internal citations omitted). 

25 “[W]hen conducting substantive review, we take into account the

26 totality of the circumstances, giving due deference to the

27 sentencing judge’s exercise of discretion, and bearing in mind

28 the institutional advantages of district courts.” Id. “[W]e

29 will not substitute our own judgment for the district court’s on
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1 the question of what is sufficient to meet the § 3553(a)

2 considerations in any particular case.” Id. at 189.

3 Appellant argues that the district court committed

4 procedural error by failing to articulate specific reasons for

5 his sentence, and, in particular, neglecting to enunciate any of

6 the factors under 18 U.S.C. § 3553(a)’s so-called “parsimony

7 clause,” see United States v. Habbas, 527 F.3d 266, 274 (2d Cir.

8 2008). Although the district court is required to give the

9 reasons for imposing its chosen sentence, 18 U.S.C. § 3553(c),

10 there is no requirement as to the length or detail of the

11 district court’s explanation. United States v. Villafuerte, 502

12 F.3d 204, 210 (2d Cir. 2007) (“When the district court imposes a

13 Guidelines sentence, it may not need to offer a lengthy

14 explanation . . . .”); see also Rita v. United States, 551 U.S.

15 338, 356 (2007) (holding that Section 3553(c) does not require a

16 full opinion in every case). Nor is there a duty upon the

17 district court to discuss each factor of Section 3553(a) with

18 particularity. United States v. Banks, 464 F.3d 184, 190 (2d

19 Cir. 2006) (“There is no requirement that the court mention the

20 required factors, much less explain how each factor affected the

21 court’s decision.”); United States v. Fernandez, 443 F.3d 19, 30

22 (2d Cir. 2006) (“[W]e will not conclude that a district judge

23 shirked her obligation to consider the § 3553(a) factors simply

24 because she did not discuss each one individually . . . .”).

25 In the instant case, the district court explained that it

26 “considered the submissions of the parties, the defendant’s
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1 guilty plea and relevant sections of the advisory sentencing

2 guidelines, and the sentencing factors set forth in [Section

3 3553(a)]” to determine that a non-Guideline sentence was not

4 warranted. Sent. Tr. at 7. In addition, the court denied a

5 downward departure “based on the factors contained in . . .

6 Section 3553(a).” Id. at 7-8. Included in the written

7 submissions of the parties were repeated references to the

8 parsimony clause, as well as other sentencing arguments and

9 considerations for the district court to weigh in its sentencing

10 decision. Although it omitted a particularized discussion of

11 each relevant sentencing factor, the district court’s sentencing

12 explanation was sufficient to meet the objects of Section

13 3553(c). Specifically, it: (i) informed appellant of “the

14 reasons for his sentence,” (ii) allowed this court meaningful

15 review, (iii) enabled the public to understand why appellant

16 received his sentence, and (iv) “guide[d] probation officers and

17 prison officials in developing a program to meet [appellant’s]

18 needs.” See United States v. Molina, 356 F.3d 269, 277 (2d Cir.

19 2004) (explaining the underlying objectives of § 3553(c)). 

20 Accordingly, we find no procedural error. 

21 Appellant also argues that the district court’s sentence was

22 substantively unreasonable because it rejected his claims for a

23 downward departure. In particular, he notes his role as sole24 care provider to his 83-year-old mother, who currently resides in

25 the United States and suffers from severe cardiac dysfunction. 

26 However, given the facts that appellant has five felony
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1 convictions, that he did not stay with his wife and child upon

2 reentry, and that seriously ill relatives are not uncommon among

3 incarcerated prisoners, we find no unreasonableness in the

4 sentence, which is at the low end of the Guidelines range. 

5 Last, appellant argues that the district court misunderstood

6 the applicable legal standards for variance from the Guidelines. 

7 He asserts that the district court erroneously required a basis

8 for departure to support a non-Guidelines sentence, based on the

9 district court’s statement at sentencing that “there is no reason

10 to depart from the advisory sentencing guideline range.” Sent.

11 Tr. at 7. However, when viewed in the broader context of the

12 sentencing transcript, this excerpt provides no indication that

13 the district court misunderstood the applicable legal standards

14 as to the issuance of a non-Guideline sentence. The district

15 court’s statement, when read in full, indicates that it found no

16 reason to depart from the Guidelines based on the submissions of

17 the parties, the defendant’s guilty plea, relevant sections of

18 the Guidelines, and the factors set forth in Section 3553(a).

19 For the foregoing reasons, the judgment order of the

20 district court is AFFIRMED.

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22 FOR THE COURT:

23 Catherine O’Hagan Wolfe, Clerk

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