14-4717-cr 

United States v. Fuentes

 

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 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 

22nd day of January, two thousand sixteen. 

Present: ROSEMARY S. POOLER, 

 PETER W. HALL, 

 SUSAN L. CARNEY, 

 Circuit Judges. 

_____________________________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

 v. 14-4717-cr 

ALEXIS FUENTES, AKA Luis Santana-Avila, 

 Defendant-Appellant. 

_____________________________________________________ 

 

Appearing for Appellant: Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury, 

VT. 

Appearing for Appellee: Paul D. Silver, Assistant United States Attorney (Edward Grogan, 

Assistant United States Attorney, on the brief), for Richard S. 

Hartunian, United States Attorney for the Northern District of New 

York, Albany, NY. 

Appeal from the United States District Court for the Northern District of New York (Suddaby, 

J.). 
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ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

 Appellant Alexis Fuentes appeals from the December 11, 2014 judgment of the United 

States District Court for the Northern District of New York (Suddaby, J.) sentencing Fuentes to a 

term of 41 months’ imprisonment, after he pleaded guilty to illegal reentry in violation of 8 

U.S.C. §§ 1326(a), (b)(2). On appeal, Fuentes argues that his sentence was substantively 

unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history, 

and specification of issues for review. 

 We review the district court’s sentence under a “deferential abuse-of-discretion 

standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks 

omitted). In reviewing for substantive error, we “take into account the totality of the 

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing 

in mind the institutional advantages of district courts.” Id. at 190. “[W]e will not substitute our 

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 decision cannot be located within 

the range of permissible decisions.” Id. at 189 (emphasis and internal quotation marks omitted). 

 Fuentes’s offense level for the illegal reentry offense was increased by 16 levels under 

U.S.S.G. § 2L1.2(b)(1)(A)(i) because Fuentes had previously been deported after a 2002 

Pennsylvania state conviction for a drug trafficking offense with a sentence in excess of 13 

months. Fuentes argues that the application of the 16-level enhancement double counts his 2002 

conviction, because the state conviction was also taken into account in calculating Fuentes’s 

criminal history. However, this Court has held that it is “well-established . . . that a district court 

does not err when it uses a prior offense to calculate both the offense level and the criminal 

history category to determine the correct Guidelines range in unlawful reentry cases.” United 

States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006). This is because “the offense level and 

criminal history category measure different things. The offense level represents a judgment as to 

the wrongfulness of the particular act. The criminal history category principally estimates the 

likelihood of recidivism.” Id. (internal quotation marks omitted); see also United States v. 

Campbell, 967 F.2d 20, 25 (2d Cir. 1992). Here, the fact that the offense level was increased by 

virtue of a previous aggravated felony conviction indicates that “the prior conviction is a critical 

part of what makes the current reentry wrongful.” Campbell, 967 F.2d at 25. Furthermore, any 

general argument by Fuentes that “because the illegal reentry is itself a nonviolent act, the 16-

level enhancement is unduly harsh” has been expressly rejected by this circuit. United States v. 

Perez-Frias, 636 F.3d 39, 44 (2d Cir. 2011). 

 Next, Fuentes argues that the Section 2L1.2(b)(1)(A)(i) enhancement is “suspect because 

it is not supported by empirical data.” Fuentes Br. at 16. Although, under Kimbrough v. United 

States, 552 U.S. 85 (2007), a district court may, in its discretion, decline to apply an 

enhancement that is not based on empirical evidence on the ground that doing so would yield a 

sentence greater than necessary, there is no basis for concluding that applying an enhancement 

not based on empirical data would always yield an excessive sentence. See Perez-Frias, 636 F.3d 
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at 43; see also United States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir. 2012); United 

States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). 

 Fuentes argues for the first time on appeal that the enhancement violates his rights to 

equal protection and due process because there is no rational basis for the distinction between 

how prior felonies are counted for illegal reentry convictions and for other convictions. Because 

Fuentes did not raise this argument below, we review for plain error. United States v. Bonilla, 

618 F.3d 102, 111 (2d Cir. 2010). “Because the distinction drawn by the Guidelines does not 

involve a suspect classification or impinge on a fundamental right, it need survive only rational 

basis scrutiny.” United States v. Thomas, 628 F.3d 64, 70 (2d Cir. 2010) (internal quotation 

marks omitted). The disparity thus survives an “equal protection challenge if there is any 

reasonably conceivable state of facts that could provide a rational basis for the classification.” Id.

Further, there is “a strong presumption of validity,” and “the burden [is] on the person attacking 

its rationality to negative every conceivable basis which might support it.” Id. at 70-71 (internal 

quotation marks omitted). Fuentes has not met this high burden here, as the enhancement could 

serve the rational purpose of providing additional deterrence to undocumented immigrants with 

drug trafficking felonies and other serious crimes from reentering the country, a consideration 

not present with other crimes. See United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 

2007); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993); United States v. 

Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992). 

 

 Because the 16-level enhancement was properly applied, Fuentes’s Guidelines range was 

41 to 51 months. Fuentes was sentenced to 41 months’ imprisonment, at the low end of the 

Guidelines range. Although there is no bright-line rule, “[w]e recognize 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). This is one of the “overwhelming majority” of cases where a 

Guidelines sentence is reasonable. United States v. Rodriguez, 715 F.3d 451, 451 (2d Cir. 2013), 

cert. denied, 134 S. Ct. 1042 (2014). First, Fuentes’s purported purpose in illegally reentering, to 

assist his teenage daughter, is not a basis for a variance, as the statute “is designed to deter 

deported aliens from illegally reentering for any reason, not merely from reentering in order to 

commit a crime.” United States v. Carrasco, 313 F.3d 750, 755 (2d Cir. 2002). Additionally, the 

district court did not err in declining to impose a below-Guidelines sentence based on the facts 

that his prior conviction was several years old and that he did not have new convictions between 

his drug trafficking conviction and his arrest in this case. The Guidelines “provide no time limit 

on the prior federal and state convictions that may be used to trigger a sentence enhancement,” 

United States v. Stultz, 356 F.3d 261, 268 (2d Cir. 2004), and Fuentes would have had no 

opportunity to commit another crime in the United States, as he was removed after he served his 

sentence for the 2002 conviction, and he was arrested immediately upon reentering the country 

in 2014. In sum, there is nothing about the particular circumstances of Fuentes’s case that 

renders a 41-month sentence substantively unreasonable. 
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 We have considered the remainder of Fuentes’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk