1 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 TH E 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 Fole y Square, in the City of New York, on the 19 th day of September, two thousand fourteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge , ROBERT D. SACK, GERARD E. LYNCH, Circuit Judges

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____________________________________________ ROBERT KASPAREK,
Petitioner , v. No. 13-2455 UNITED STATES PAROLE COMMISSION, Respondent.

____________________________________________ For Petitioner: M OLLY K. C ORBETT (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.

### 2 For Respondent: S HARON G ERVASONI , 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 Comm ission’s determination of his release date pursuant to 18 U.S.C. § 4106A. We assume the parties’ familia rity 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 murd er 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 Stat es 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 Un ited States, the Parole Commission determined that the analogous offense under United States law is also second-d egree murder. Applying the Guidelines in force at the time of Kasparek’s convi ction, 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 be cause the defendant accepted responsibility for the offense. Based on a total offense level of 33 and a criminal history category of III, the

### 3 Commission calculated that the Guid elines range applicable to Ka sparek’s offense of conviction is 168–210 months’ imprisonment. The Commissi on, however, determined that an upward departure from this range was appr opriate 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’ to tal incarceration. Kasparek contends that the Commission’s dete rmination of his release date violated his Sixth Amendment right to ju ry 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 Kasp arek objects related onl y 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 maxi mum or minimum term, wh ich was at issue in Alleyne

. Alleyne , therefore, is wholly inapposite to this case. As to reasonableness, we re view the Parole Commission’s determination of Kasparek’s release date “‘as though the determination app ealed 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 releas e-date determination for reasonableness, which includes a procedural an d substantive component. See United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

### 4 “Procedural error occurs in situations where, for instance, the distri ct 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 cont rast, we are especially deferential to the substantive reasonablene ss of a sentence, and will “set aside a . . . substantive determination” about the appropriate sentence “o nly 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 argum ents 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 revi ew 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 un less, 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 offe nse level pursuant to U.S.S.G. § 3A1.1 because the Commission lacked a sufficient and particularized factual basi s to conclude the victim was vulnerable.” We find no plain erro r in the Commission’s determination that a two-level increase to the base offense level was warranted. As th e Commission explained, th e offense of conviction involved the extremely violent murder of a seventy-year-old woman. A Probation Officer’s

### 5 report to the Commission similarly noted the Ca nadian sentencing judge’s description of the offense: The crime was a “brutal and callous” o ffense 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 pa thologist that “having received [ninet een] 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 cla ss, 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 subjec t 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 Co mmission 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 clai m as procedural error; as a vi olation of his Sixth Amendment rights; and as a violation of both the applicab le 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 pr ison long after he became parole-eligible demonstrates, Kasparek did not become entitled to release the moment fourteen years had run on

### 6 his life sentence. His sentence was, instead, avow edly a sentence to “life” imprisonment with the possibility of parole. We therefore discern no breach of the treaty, or the transf er statute, in the Commission’s determination that Kasparek should be released af ter 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 te rm 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 ar guments and find them to be without merit. For the reasons stated herei n, the petition for review is DENIED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk