United States v. Aguilar-Torres , 401 F. App'x 616 ( 2010 )

09-3523-cr
USA v. Aguilar-Torres
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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 1st day of December, two thousand ten.
Present: RALPH K. WINTER,
GUIDO CALABRESI,
ROBERT A. KATZMANN,
Circuit Judges.
____________________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- No. 09-3523-cr
JESUS AGUILAR-TORRES,
Defendant-Appellant.
____________________________________________________________
For Defendant-Appellant: Colleen P. Cassidy, Federal Defenders of New
York, Inc., Appeals Bureau, New York, N.Y.
For Appellee: James J. Pastore, Jr., Assistant United States
Attorney (Katherine Polk Failla, Assistant
United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the
Southern District of New York, New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Baer, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Jesus Aguilar-Torres appeals from a judgment of conviction in the
United States District Court for the Southern District of New York (Baer, J.), entered August 6,
2009, following his entry of a plea of guilty to one count of illegally reentering the country
following deportation in violation of 8 U.S.C. § 1326. The district court sentenced Aguilar-
Torres principally to 36 months’ imprisonment. On appeal, Aguilar-Torres challenges his
sentence as procedurally unreasonable, asserting that the district court misapprehended its
authority to grant a downward departure under Application Note 7 of § 2L1.2 of the United
States Sentencing Guidelines. We assume the parties’ familiarity with the remaining facts and
procedural history of this case.
A district court commits procedural error if it misapprehends “the availability of
departure authority.” United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005). “In the
absence of ‘clear evidence of a substantial risk that the judge misapprehended the scope of his
departure authority,’ we presume that a sentenc[ing] judge understood the scope of his authority.”
United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (quoting United States v. Gonzalez,
281 F.3d 38, 42 (2d Cir. 2002)). However, if a judge’s “remarks create ambiguity as to whether
the judge correctly understood an available [sentencing] option,” the appellate court should
“remand for clarification,” unless “the record indicated clearly that the district court would have
imposed the same sentence had it had an accurate understanding of its authority.” United States
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v. Sanchez, 517 F.3d 651, 665 (2d Cir. 2008) (alteration in original) (internal quotation mark
omitted).
The district court’s Guidelines calculations included a 16-level increase to the base
offense level because Aguilar-Torres had been previously deported after conviction for a felony
that is a “crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Aguilar-Torres requested a
downward departure pursuant to Application Note 7 on the ground that his “crime of violence”
did not meet the definition of an aggravated felony at 8 U.S.C. § 1101(a)(43) because the
sentence for his felony conviction was not for more than one year of imprisonment. See U.S.S.G.
§ 2L1.2 cmt. n.7. The district court responded:
[T]he 16 level enhancement really does seem a little outrageous to me. . . . [I]t seems like
maybe I just need to understand a little more about how the guidelines came to -- the
Commission came to that conclusion. But I don’t expect you’re going to give me any --
in any event, I mean if we look at the guidelines from a simply orthodox viewpoint, there
is nothing wrong with these guidelines, and the offense level seems appropriate under the
circumstances as does the criminal history category.
A. 50-51.
Here, the district court questioned why the Guidelines impose an enhancement of 16
levels for a prior conviction for a “crime of violence,” but it ultimately concluded that the offense
level did not substantially overstate the severity of Aguilar-Torres’s prior conviction. The district
court’s remarks were sufficient acknowledgment of its authority to grant the downward
departure, since a district court need not “by robotic incantations state ‘for the record’ . . . that
they are aware of this or that arguable authority to depart but that they have consciously elected
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not to exercise it.” United States v. Brown, 98 F.3d 690, 694 (2d Cir. 1996). Having declined to
exercise the departure authority under Application Note 7, the district court nevertheless granted
a downward variance and imposed a below-Guidelines sentence based on the factors under 18
U.S.C. § 3553(a). We conclude, therefore, that the district court’s remarks lack the ambiguity
that would warrant remand for clarification. See Sanchez, 517 F.3d at 665. Even assuming,
arguendo, the district court’s remarks evinced some ambiguity, remand would not be appropriate
because the district court, having granted a variance, would impose the same sentence. Id.We have considered Aguilar-Torres’s remaining arguments and find them to be without
merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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