United States v. Antonio-Genan

363 F. App'x 78

• Court: Court of Appeals for the Second Circuit
• Decided: January 29, 2010
• Docket: 09-0337-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Perfecto Antonio-Genan, appellant, pled guilty to illegal re-entry into the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). On January 22, 2009, Judge Berman of the Southern District of New York sentenced appellant to 46 months’ imprisonment followed by three years of supervised release and a special assessment of $100. Antonio-Gen-an now appeals.

We assume the parties’ familiarity with all additional underlying facts, procedural history, and specification of issues for review.

The only issue before this court is whether the judge’s conclusion that appellant was on parole when he illegally reentered the United States and thus subject to a two point criminal history increase under U.S.S.G. § 4Al.l(d) was erroneous, and rendered appellant’s sentence unreasonable.

The facts of appellant’s parole are not in dispute, the only question is the interpretation of New York Executive Law § 259 — j (3-a), part of the New York State Drag Law Reform Act of 2005, as applied to federal sentencing decisions. The provision states that the division of parole “must grant termination of sentence after two years of unrevoked parole to a person serving an indeterminate sentence for any other felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law.” The parties agree that appellant’s conviction is eligible under § 259 — j (3-a), and that appellant’s parole was never revoked.

Ordinarily we review an alleged procedural error for abuse of discretion. Unit ed States v. Parker, 577 F.3d 143, 147 (2d Cir.2009). Here, however, we need not decide whether the district court committed procedural error in its interpretation of New York Executive Law § 259 — j (3 — a) in calculating appellant’s criminal history category because any error was harmless. See id.

Even if the district court procedurally erred when it concluded that appellant was on parole at the time of his illegal re-entry, the district court imposed a non-guideline sentence of 46 months’ imprisonment “as if’ defendant was correct that he was not on parole when he re-entered the United States. Therefore, it is clear that the district court would have imposed the same sentence regardless of its ultimate Sentencing Guidelines range calculation. And as appellant rightly concedes, “if the district court ‘indicates that it would have’ imposed the same sentence, no matter the outcome of the dispute before it, there is no basis for requiring a resentencing.” Df. Reply Br. at 8 (citing United States v. Borrego, 388 F.3d 66, 69 (2d Cir.2004)). Because we conclude that the district court so indicated, any procedural error was harmless, and thus, need not be resolved on this appeal.

Accordingly, the judgement of the district court hereby is AFFIRMED.