16-2975-cr (L)
United States of America v. Sosa-Ramirez

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 ELECTRON IC 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
23 rd day of June, two thousand seventeen.

Present: GUIDO CALABRESI, ROSEMARY S. POOLER, Circuit Judges

. LAWRENCE J. VILARDO, 1 District Judge

.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee

,

v. 16-2975-cr (L) 16-3001-cr (CON) JOSE YGNACIO SOSA-RAMIREZ,

Defendant-Appellant

.

_____________________________________________________
Appearing for Appellant: Bradley Stetler, Stetler, Allen & Kampmann, Burlington, VT.

Appearing for Appellee: Michae l P. Drescher, Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief ), for Eugenia A.P. Cowles, Acting United States Attorney for the District of Vermont, Burlington, VT.

1 Judge Lawrence J. Vilardo, United States District Court for the Western District of New York, sitting by designation.2 Appeal from the United States District Court for the District of Vermont (Reiss, C.J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED

.

Defendant-Appellant Jose Ygnacio Sosa -Ramirez appeals from the August 25, 2016 judgments of the United States District C ourt for the District of Vermont (Reiss, C.J .) sentencing him to 50 months of imprisonment for his illegal re -entry into the United States as an aggravated felon, and a consecutive sentence of 24 months of imprisonment for his violation of the terms of earlier-imposed supervised release. We assume th e parties’ familiarity with the underlying facts, procedural history, and specifi cation of issues for review.

“Our review of criminal sentences include s both procedural and substantive components
and amounts to review for abuse of discretion.” United States v. McIntosh , 753 F.3d 388, 393-94 (2d Cir. 2014) (per curiam) (i nternal quotation marks omitted). “Procedural error occurs in situations where, for instance, the district cour t miscalculates the Guidelines; treats them as mandatory; does not adequately explain the se ntence imposed; does not properly consider the [Section] 3553(a) factors; bases its sentence on clearly erroneous facts; or deviates from the Guidelines without explanation.” Id. at 394. Review for substantiv e reasonableness “provide[s] a backstop for those few cases that, although proce durally 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).

Sosa-Ramirez first argues that his senten ce was procedurally unr easonable because the district court failed to explain the particular factors justifyi ng its decision to make the two sentences run consecutively. We disagree. The dist rict court explained its reliance on the Section 3553(a) sentencing factors in imposing consecutive se ntences, particularly st ressing the need for Sosa-Ramirez’s incapacitation thro ugh incarceration because of hi s repeated federal felonies, repeated instances of illegal re-entry, and the unusual fact that he had committed the instant offense while on supervised release. The relevant Guidelines also suppor t the district court’s actions, as Application Note 4( C) of Section 5G1.3(d) of the Guidelines states that “the
Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation” of supe rvised release. U.S.S.G. § 5G1.3(d) application n. 4(C). The district court correctly calculated th e Guidelines range for Sosa-Ramirez’s illegal reentry to be 70-87 months and for the violation of supervised release to be 21-27 months. App’x
at 59. The total sentence of 74 months was theref ore within the range fo r the illegal re-entry alone and will below the total range of 91-114 mont hs. The district court further noted that, in order to avoid possible double-c ounting of Sosa-Ramirez’s criminal history, it had adjusted its
sentence on the instant offense conduct to a “mid -range,” below-Guidelines sentence to account
for Sosa-Ramirez’s consecutive sent ence on his violation of superv ised release. App’x at 62.

Sosa-Ramirez also argues that his senten ce was substantively unreasonable. We cannot say that either the below-Guidelines 50-month sentence for illegal re-entry, or the withinGuidelines 24-month sentence for violation of supervised release, is “shockingly high.” Rigas

, 583 F.3d at 123. These sentences are particularly appropriate because Sosa-Ramirez received a3 lenient sentence when he committed a previous crime because he promised not to come back to the United States, but then proceeded to break that promise. Further, the district court appropriately exercised its di scretion and followed the Guidel ines in imposing consecutive
sentences for Sosa-Ramirez’s instant offense conduc t and his violation of supervised release. See U.S.S.G. § 5G1.3(d) & application n. 4(C).

Additionally, we reject Sosa-Ramirez’s argumen ts that he should not be penalized for violating a term of his supervis ed release since he had been de ported. This Court has held that supervised release does not terminate upon deportation. See United States v. Roccisano , 673 F.3d 153, 157 (2d Cir. 2012). Sosa-Ramirez was subject to the terms of his supervised release notwithstanding his deportation and therefore may properly be sentenced for violating his supervised release as a resu lt of his ille gal re-entry.

We have considered the remainder of Sosa -Ramirez’s arguments and find them to be without merit. Accordingly, th e judgments of the district court hereby are AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk