United States v. Pena Soltren ( 2013 )

12-4755-cr
United States v. Pena Soltren
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of December, two thousand thirteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 BARRINGTON D. PARKER,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 12-4755-cr
16
17 JOSE RAFAEL RIOS CRUZ, MIGUEL CASTRO,
18 ALEJANDRO FIGUEROA,
19 Defendants
20
21 LUIS ARMANDO PENA SOLTREN,
22 Defendant-Appellant.
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24
25 FOR APPELLANT: James E. Neuman, Law Office of
26 James E. Neuman, New York, New
27 York.
28
1
1 FOR APPELLEES: Ryan P. Poscablo (with Jennifer
2 G. Rodgers on the brief),
3 Assistant United States
4 Attorneys, for Preet Bharara,
5 United States Attorney for the
6 Southern District of New York.
7
8 Appeal from a sentence of the United States District
9 Court for the Southern District of New York (Hellerstein,
10 J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that defendant’s sentence is AFFIRMED.
14
15 Luis Armando Peña Soltren appeals from a judgment of
16 conviction entered on January 14, 2011, following his guilty
17 plea to conspiracy to commit air piracy and kidnapping in
18 violation of 18 U.S.C. § 371 (1964), 49 U.S.C. § 1472(i)
19 (1964), and 18 U.S.C. § 1201 (1964); interfering with flight
20 crew members in violation of 49 U.S.C. § 1472(j) (1964); and
21 kidnapping in violation of 18 U.S.C. § 1201 (1964). We
22 assume the parties’ familiarity with the underlying facts,
23 the procedural history, and the issues presented for review.
24
25 On November 24, 1968, Peña Soltren--then age 25--was
26 one of three men who hijacked Pan American Airways Flight
27 281, en route from John F. Kennedy International Airport in
28 New York to Puerto Rico. Using guns and knives to gain
29 control of the plane, they forced the pilots to land in
30 Havana.
31
32 Peña Soltren remained in Cuba for more than forty
33 years. In October 2009, he returned to the United States,
34 where he was arrested and prosecuted for the 1968
35 sky-jacking. Pursuant to a plea bargain, Peña Soltren pled
36 guilty to the offenses detailed above.
37
38 This is Peña Soltren’s second sentencing appeal. He
39 was sentenced originally to fifteen years’ imprisonment
40 without the possibility of parole. On appeal, we vacated
41 the sentence and remanded for resentencing on the ground
42 that the district court erred in imposing a sentence that
43 excluded the possibility of parole, a benefit that was
44 available with respect to crimes committed in 1968. See
45 United States v. Rios Cruz, 481 F. App’x 650, 652 (2d Cir.
46 2012).
47
2
1 In remanding for resentencing de novo, we declined to
2 reassign the case. We noted that “[c]ontrary to Peña
3 Soltren’s assertion, Judge Hellerstein did not rely on any
4 inappropriate factors in imposing sentence. On the
5 contrary, the record shows that Judge Hellerstein fully
6 considered Peña Soltren’s mitigating arguments in
7 determining his sentence and made no error casting a shadow
8 on the court’s impartiality.” Id.9
10 On remand, Judge Hellerstein sentenced Peña Soltren to
11 fifteen years’ imprisonment, with the possibility of parole
12 after five years.
13
14 Peña Soltren’s present appeal argues that the district
15 court’s sentence was substantively and procedurally
16 unreasonable. See United States v. Booker, 543 U.S. 22017 (2005). The appellate review standard of Booker and its
18 progeny is inapplicable here, however, because Peña
19 Soltren’s offenses pre-dated the Sentencing Guidelines. In
20 a pre-Guidelines case, the sentencing court has “‘wide
21 discretion in imposing sentence, and, . . . if a sentence is
22 within the permissible statutory limits and it does not
23 appear that the court took into account any improper factor,
24 the sentence may not be reviewed on appeal.’” United States
25 v. Ruggiero, 928 F.2d 1289, 1306 (2d Cir. 1991) (quoting
26 United States v. Giraldo, 822 F.2d 205, 210 (2d Cir. 1987)).
27 “In deciding what sentence to impose, ‘a judge may
28 appropriately conduct an inquiry broad in scope, largely
29 unlimited either as to the kind of information he may
30 consider, or the source from which it may come.’” McClain
31 v. United States, 676 F.2d 915, 918 (2d Cir. 1982) (quoting
32 United States v. Tucker, 404 U.S. 443, 446 (1972)). A pre-
33 Guidelines sentence will be “vacated . . . if it is ‘founded
34 at least in part upon misinformation of constitutional
35 magnitude.’” Id. (quoting Tucker, 404 U.S. at 447).
36
37 Like the district court, we are sensitive to Peña
38 Soltren’s difficult personal history, both before and after
39 his crime. There seems to be no reason to question his
40 genuine remorse and his otherwise unblemished record of
41 service to family and community. But we find no error–-much
42 less one of constitutional magnitude--in the district
43 court’s sentencing. The record demonstrates that Judge
44 Hellerstein carefully and seriously reflected on a wide
45 range of relevant and permissible factors before imposing a
46 sentence within the applicable statutory range. The judge’s
47 lengthy discussion of appellant’s character and the nature
3
1 of his crime leaves no doubt that Peña Soltren’s fate
2 “caused [Judge Hellerstein] to do a lot of thinking and lose
3 a lot of sleep.” Tr. of Second Sentencing Hrg., App’x 47.
4 As in Peña Soltren’s prior appeal, the record demonstrates
5 that “Judge Hellerstein fully considered Peña Soltren’s
6 mitigating arguments in determining his sentence and made no
7 error casting a shadow on the court’s impartiality.” Rios
8 Cruz, 481 F. App’x at 650.
9
10 Our review of this pre-Guidelines sentence is narrowly
11 circumscribed. “Because it does not appear that the
12 district court took into account any impermissible factor
13 and because [Peña Soltren] was sentenced within the
14 statutory maximum, we may not review the sentence.” United
15 States v. Vogel, 54 F.3d 49, 51 (2d Cir. 1995).
16
17
18 AFFIRMED.
19
20
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, CLERK
23
24
4