United States v. Garcia , 508 F. App'x 79 ( 2013 )

11-5321-cr
United States v. Garcia
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 Courthouse, 40 Foley Square, in the City of New York, on the 28th day of
January, two thousand thirteen.
Present:
AMALYA L. KEARSE,
ROBERT A. KATZMANN,
Circuit Judges.
JED S. RAKOFF,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 11-5321-cr
MARLON ENRIQUE GARCIA,
Defendant-Appellant.
________________________________________________
For Appellee: Emily Berger & Michael P. Canty, Assistant United States
Attorneys, for Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
*
The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
For Defendant-Appellant: David A. Lewis, Federal Defenders of New York, Inc., New
York, NY.
Appeal from the United States District Court for the Eastern District of New York
Irizarry, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the decision of the district court be and hereby is AFFIRMED.
Defendant-Appellant Marlon Enrique Garcia appeals from his judgment of conviction
and sentence entered on December 21, 2011, sentencing him to 72 months of imprisonment and
3 years of supervised release for illegal reentry into the United States in violation of 8 U.S.C. §§
1326(a) & (b). Garcia illegally entered the United States when he was 13 or 14 years old and
was convicted of multiple crimes as a young man, including aggravated assault. After being
convicted of assaulting a police officer, he was deported in 2007. Since his illegal reentry into
the country nine months later, he has been arrested multiple times and was again convicted for
assault. Following an arrest for possession of a forged instrument in April 2011, immigration
officials discovered that he had returned to the United States illegally, and he was charged with
illegal reentry. We assume the parties’ familiarity with the underlying facts and procedural
history of this case, as well as with the issues on appeal.
Garcia challenges only his term of supervised release, contending that the district court
committed procedural error by failing to adequately explain why a period of supervised release
was proper in light of a newly amended provision of the United States Sentencing Guidelines.
The provision, which took effect just six weeks before Garcia’s sentencing hearing, states that
“[t]he court ordinarily should not impose a term of supervised release in a case in which
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supervised release is not required by statute and the defendant is a deportable alien who likely
will be deported after imprisonment.” U.S.S.G. § 5D1.1(c). The comments to the amendment
elaborate that, under these circumstances, supervised release is normally “unnecessary” because
“the need to afford adequate deterrence and protect the public ordinarily is adequately served by
a new prosecution [for illegal reentry].” Id. cmt. n.5. However, the comments also clarify that
courts “should . . . consider imposing a term of supervised release on such a defendant if the
court determines it would provide an added measure of deterrence and protection based on the
facts and circumstances of a particular case.” Id. (emphasis added).
Because Garcia failed to object to his sentence below, we review for plain error. United
States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). We, in fact, find no error with the district
court’s decision. A district court must provide reasons for the imposition of a particular
sentence, and failure to do so renders the sentence procedurally unreasonable. United States v.
Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). During sentencing in this case, however,
the district court explicitly recognized the applicability of the new provision of the Guidelines
and stated:
[W]hile I understand that the new guidelines recommend in cases where the
defendant is likely to be deported that no term of supervised release be imposed[,
given] that I have some doubts about the defendant’s ability to contain himself
and not return to the United States, I am going to impose a term of three years of
supervised release . . . [with the special condition] not to reenter the United States
illegally.
J. App’x at 83.
Despite Garcia’s protestations, the court offered an adequate explanation. We agree with
a number of our sister circuits that supervised release is appropriate even under the new
Guidelines if the district court finds that a defendant is particularly likely to reenter the country
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illegally again in the future. See United States v. Gonzalez-Alvarez, No. 11-50508, 2012 WL
5462571 (9th Cir. Nov. 9, 2012); United States v. Lawrence, No. 11-4562, 2012 WL 5395798(3d Cir. Nov. 6, 2012); United States v. Montoya-Rodriguez, No. 12-40134, 2012 WL 5377780(5th Cir. Nov. 2, 2012). Here, reading the district court’s statement in the context of the entire
sentencing hearing, it is clear that it thought supervised release was necessary to provide added
deterrence because Garcia had already illegally returned to the country once and it doubted the
defendant’s ability to “contain himself” from doing so again.1 This sufficiently informs the
defendant about the reasons for the sentence and satisfies the court’s procedural obligations.2
See Gonzalez-Alvarez, 2012 WL 5462571, at *1 (finding a similar explanation sufficient where
the court said “I am trying my best to impose a sentence that will deter [the defendant] from
coming back, but I have no great confidence that it will, and I think supervised release is
necessary as an additional consequence to add to the deterrence.” (internal quotation marks
omitted)).
1
The district court was also concerned about Garcia’s violent criminal history and
wanted to “protect[ ] the public from any future crime.” J. App’x at 82. The court did not
specifically mention this concern when imposing supervised release, but, looking at the
sentencing hearing as a whole, Garcia should have been able to tell that it was another reason for
the court’s decision. The Fifth Circuit found a district court’s explanation for imposing
supervised release adequate where the court stressed the defendant’s violent criminal history and
danger to the community. See United States v. Lara-Espinoza, No. 11-11180, 2012 WL
3984421 (5th Cir. Sept. 12, 2012).
2
However, where the crime at issue is not an immigration-related offense and the
defendant does not have a history of illegal reentry into the United States or a particularly violent
track record, a more detailed explanation on the part of the district court might be warranted.
The new provision, after all, counsels that supervised release should ordinarily not be imposed
where the defendant is likely to be deported, and courts should be careful to avoid rendering this
new guideline completely meaningless.
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Lastly, we cannot accept Garcia’s contention that the district court was also required to
explain how the imposition of supervised release would actually result in a marginal increase in
deterrence. The new Guidelines “leav[e] within the discretion of the sentencing court the option
of imposing supervised release in uncommon cases where added deterrence and protection are
needed.” United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012) (emphasis
added). The district court adequately explained why it thought added deterrence was needed in
this case. Nothing more was required. We have considered Garcia’s remaining arguments and
find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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