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13-2455 

United States v. Kasparek

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 

19th day of September, two thousand fourteen. 

PRESENT: 

 ROBERT A. KATZMANN,

 Chief Judge,

 ROBERT D. SACK, 

 GERARD E. LYNCH,

 Circuit Judges. 

____________________________________________ 

 

ROBERT KASPAREK, 

 Petitioner, 

 v. No. 13-2455 

UNITED STATES PAROLE COMMISSION, 

 Respondent. 

____________________________________________ 

For Petitioner: MOLLY K. CORBETT (Paul J. Evangelista, Assistant 

Federal Public Defender, on the brief), for Lisa A. 

Peebles, Federal Public Defender for the Northern 

District of New York, Albany, NY. 
 

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For Respondent: SHARON GERVASONI, Assistant General Counsel, 

for J. Patricia Smoot, Acting General Counsel, 

United States Parole Commission, Washington, DC. 

 Petition for review of a transfer-treaty determination by the United States Parole 

Commission.

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

DECREED that the petition for review is DENIED. 

 Robert Kasparek, a transfer treaty prisoner imprisoned within this Circuit, petitions for 

review of the United States Parole Commission’s determination of his release date pursuant to 18 

U.S.C. § 4106A. We assume the parties’ familiarity with the facts and the record of prior 

proceedings, which we reference only as necessary to explain our decision to deny the petition. 

Kasparek was convicted of second-degree murder by a Canadian court and sentenced to 

life imprisonment, as is mandatory under Canadian law, see Canada Criminal Code, R.S.C. 1985, 

c. C-46, § 235, with a possibility of parole after fourteen years. The U.S. Parole Commission is 

authorized “to determine a release date for an offender transferred to the United States as though 

the offender were convicted in a United States district court of a similar offense.” Austin v. U.S. 

Parole Comm’n, 448 F.3d 197, 200 (2d Cir. 2006) (citing 18 U.S.C. § 4106A(b)(1)(A)). Upon 

Kasparek’s transfer to the United States, the Parole Commission determined that the analogous 

offense under United States law is also second-degree murder. Applying the Guidelines in force 

at the time of Kasparek’s conviction, the Commission further determined that a base offense 

level of 33 for his offense should be increased by two levels because the offense involved a 

vulnerable victim, but decreased by two levels because the defendant accepted responsibility for 

the offense. Based on a total offense level of 33 and a criminal history category of III, the 
 

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Commission calculated that the Guidelines range applicable to Kasparek’s offense of conviction 

is 168–210 months’ imprisonment. The Commission, however, determined that an upward 

departure from this range was appropriate in light of Kasparek’s criminal history and extreme 

conduct, see U.S.S.G. §§ 4A1.3 & 5K2.8, and therefore set Kasparek’s release date to coincide 

with 320 months’ total incarceration.

 Kasparek contends that the Commission’s determination of his release date violated his 

Sixth Amendment right to jury trial as elaborated by Alleyne v. United States, 133 S. Ct. 2151 

(2013), and is both procedurally and substantively unreasonable. 

 Before turning to the reasonableness of Kasparek’s sentence, we reject his Sixth 

Amendment claim as foreclosed by the law of our Circuit. As we have previously held, 

“[b]ecause [petitioner’s] punishment derives from his violation of [foreign] law, he does not 

enjoy the Sixth Amendment right to trial by jury . . . .” Austin, 448 F.3d at 201. We note, 

moreover, that the factfinding to which Kasparek objects related only to the Commission’s 

“factfinding used to guide judicial discretion,” Alleyne, 133 S. Ct. at 2161 n.2, not to the 

determination of the applicable statutory maximum or minimum term, which was at issue in 

Alleyne. Alleyne, therefore, is wholly inapposite to this case. 

 As to reasonableness, we review the Parole Commission’s determination of Kasparek’s 

release date “‘as though the determination appealed had been a sentence imposed by a United 

States district court.’” Austin, 448 F.3d at 200 (quoting 18 U.S.C. § 4106A(b)(2)(B)). 

Accordingly, we review the Commission’s release-date determination for reasonableness, which 

includes a procedural and substantive component. See United States v. Cavera, 550 F.3d 180, 

189 (2d Cir. 2008) (en banc). 
 

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 “Procedural error occurs in situations where, for instance, the district court miscalculates 

the Guidelines; treats them as mandatory; does not adequately explain the sentence imposed; 

does not properly consider the [18 U.S.C.] § 3553(a) factors; bases its sentence on clearly 

erroneous facts; or deviates from the Guidelines without explanation.” United States v. Cossey, 

632 F.3d 82, 86 (2d Cir. 2011) (per curiam). By contrast, we are especially deferential to the 

substantive reasonableness of a sentence, and will “set aside a . . . substantive determination” 

about the appropriate sentence “only in exceptional cases where the . . . decision ‘cannot be 

located within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting United 

States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). 

 Kasparek groups a number of disparate arguments under the umbrella of a procedural 

challenge to the Commission’s determination of his release date. None was raised before the 

Parole Commission, and so we review his claims for plain error. See United States v. 

Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Under that standard of review, we will not 

correct a putative error unless, among other considerations, the error is “clear or obvious, rather 

than subject to reasonable dispute.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal 

quotation marks omitted). 

Kasparek principally argues that the Commission erred in applying a two-level 

vulnerable-victim enhancement to his base offense level pursuant to U.S.S.G. § 3A1.1 because 

the Commission lacked a sufficient and particularized factual basis to conclude the victim was 

vulnerable.” We find no plain error in the Commission’s determination that a two-level increase 

to the base offense level was warranted. As the Commission explained, the offense of conviction 

involved the extremely violent murder of a seventy-year-old woman. A Probation Officer’s 
 

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report to the Commission similarly noted the Canadian sentencing judge’s description of the 

offense: The crime was a “brutal and callous” offense against “a defenceless 70 year old woman 

in the sanctity of her home in the middle of the night.” J.A. 56. The Canadian authorities also 

noted the conclusion of a pathologist that “having received [nineteen] blows, [the victim] tried to 

escape and was pursued by the accused who then stabbed her in the back and the abdomen.” J.A. 

16. “[A]lthough there is skepticism of generalized assumptions about a victim’s vulnerability 

based upon that person’s membership in a class, many cases have upheld vulnerable victim 

enhancements based on group generalizations.” United States v. McCall, 174 F.3d 47, 51 (2d Cir. 

1998). Thus, it is at least subject to reasonable dispute whether a seventy-year-old woman living 

alone is particularly vulnerable to the violent offense of which the petitioner was convicted. We 

accordingly conclude that the Commission did not plainly err in concluding that the petitioner 

committed this violent offense against a vulnerable victim. 

 Kasparek also argues that the Commission’s release-date determination extended the 

duration of his sentence beyond the term that he would have served in Canada. His briefing 

equivocates in styling this claim as procedural error; as a violation of his Sixth Amendment 

rights; and as a violation of both the applicable treaty, Treaty Between the United States of 

America and Canada on the Execution of Penal Sentences, U.S.-Can., art. IV(3), Mar. 2, 1977, 

30 U.S.T. 6263, and statutory law, 18 U.S.C. § 4106A(b)(1)(C). Contrary to the discordant 

characterizations of the Canadian sentence contained in Kasparek’s briefing, we note that he was 

sentenced to life imprisonment with a possibility of parole after fourteen years. And, indeed, as 

his continued incarceration in Canadian prison long after he became parole-eligible 

demonstrates, Kasparek did not become entitled to release the moment fourteen years had run on 
 

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his life sentence. His sentence was, instead, avowedly a sentence to “life” imprisonment with the 

possibility of parole. We therefore discern no breach of the treaty, or the transfer statute, in the 

Commission’s determination that Kasparek should be released after 320 months’ total 

incarceration. 

Finally, Kasparek argues for the first time in his reply brief that the Commission’s 

determination was substantively unreasonable. “We will not consider an argument raised for the 

first time in a reply brief.” United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003). Even if we 

were to assess the substantive reasonableness of a 320-month term of incarceration, we would 

find that the term fits comfortably within the range of permissible decisions for so violent a 

crime.

 We have considered Kasparek’s remaining arguments and find them to be without merit. 

For the reasons stated herein, the petition for review is DENIED. 

 

FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk