United States v. Donoteo-Reyes

• Court: Court of Appeals for the Second Circuit
• Decided: January 25, 2022
• Docket: 20-2564
• Status: Unpublished

Opinion

20-2564 United States v. Donoteo-Reyes

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 TO 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 for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 25th day of January, two thousand twenty-two.

4 PRESENT: 5 SUSAN L. CARNEY, 6 STEVEN J. MENASHI, 7 MYRNA PÉREZ, 8 Circuit Judges. 9 _________________________________________

10 UNITED STATES OF AMERICA,

11 Appellee,

12 v. No. 20-2564

13 EVERARDO DONOTEO-REYES, AKA 14 ALBERTO EBARADO GUTIERREZ-REYES,

15 Defendant-Appellant. 16 _________________________________________

17 FOR APPELLANT: Matthew R. Lembke, Cerulli Massare & 18 Lembke, Rochester, NY.

19 FOR APPELLEE: Tiffany H. Lee, for James P. Kennedy, Jr., 20 United States Attorney for the Western 21 District of New York, Buffalo, NY. 1 Appeal from a judgment of the United States District Court for the Western District 2 of New York (Siragusa, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 4 ADJUDGED, AND DECREED that the judgment entered on July 21, 2020, is 5 AFFIRMED.

6 Defendant-Appellant Everardo Donoteo-Reyes appeals from a judgment imposing a 7 sentence of incarceration following his plea of guilty to one count of fraud and misuse of a 8 permanent resident card, see 18 U.S.C. § 1546(a), one count of fraud and misuse of a social 9 security card, see id., and one count of unlawful reentry into the United States after being 10 removed, see 8 U.S.C. § 1326(a). Donoteo-Reyes was sentenced to serve 30 months of 11 incarceration on the misuse of documents counts and 24 months on the unlawful reentry 12 count, the terms to be served concurrently. On appeal, he contends that his sentence is 13 procedurally and substantively unreasonable. We assume the parties’ familiarity with the 14 underlying facts, procedural history, and arguments on appeal, to which we refer only as 15 necessary to explain our decision to affirm.

16 In calculating the applicable Sentencing Guidelines range, the district court included a 17 10-level enhancement to Donoteo-Reyes’s offense level based on his state court conviction 18 for two counts of manslaughter—felonies for which he was sentenced to serve a term of 19 imprisonment of five years or more, and which were based on conduct that occurred after 20 his previous removal from the United States. See U.S.S.G. § 2L1.2(b)(3)(A). The district court 21 also directed that the federal sentence run consecutively to Donoteo-Reyes’s state term of 22 imprisonment for the state felonies. It did not grant an adjustment or downward departure 23 for time already served on the state sentence.

24 We review sentencing decisions for both procedural and substantive reasonableness. 25 United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). The “reasonableness” 26 standard is “a particularly deferential form of abuse-of-discretion review.” 1 Id. at 188 & n.5.

1Unless otherwise noted, in quoting caselaw, this Order omits all alterations, citations, footnotes, and internal quotation marks.

2 1 Although we do not presume that a within-Guidelines sentence is reasonable, we also do not 2 treat appellate review as “an opportunity for tinkering with sentences we disagree with.” 3 United States v. Dorvee, 616 F.3d 174, 182–83 (2d Cir. 2010).

4 Donoteo-Reyes acknowledges that the district court calculated the Guidelines range 5 correctly, but he advances several arguments in support of his view that the district court’s 6 adherence to the Guidelines was procedurally unreasonable. We typically review arguments 7 regarding the district court’s decision whether to “vary from the Guidelines range based 8 solely on a policy disagreement with the Guidelines” under the rubric of substantive 9 unreasonableness. Id. at 188; cf. United States v. Salas-Miranda, 831 F. App’x 43, 45 (2d Cir. 10 2020) (assessing arguments similar to those made here in terms of substantive 11 unreasonableness). Whether we regard his arguments as going to the procedural or 12 substantive reasonableness of his sentence, we find no abuse of discretion in the district 13 court’s sentencing decision.

14 A. U.S.S.G. § 2L1.2(b)(3)

15 Section 2L1.2(b)(3)(A) of the Sentencing Guidelines provides for a 10-level increase 16 in a defendant’s offense level if, after the defendant was previously ordered removed, he 17 engaged in criminal conduct that resulted in a “conviction for a felony offense (other than an 18 illegal reentry offense) for which the sentence imposed was five years or more.” U.S.S.G. 19 § 2L1.2(b)(3)(A). Donoteo-Reyes maintains that the district court should not have applied 20 this enhancement.

21 First, he raises policy disagreements concerning the substance of the enhancements 22 imposed by § 2L1.2(b)(3). Donoteo-Reyes has not shown, however, that the Sentencing 23 Commission departed from its usual empirical approach in developing the Guideline such 24 that its application will often lead to a greater-than-necessary sentence. He advances an 25 argument similar to that made by the defendant in Dorvee, a case in which we expressed 26 concerns about the soundness of the Sentencing Commission’s approach to enhancements 27 applied in the child pornography context. Dorvee, 616 F.3d at 188 (explaining how the child 28 pornography enhancements are “an eccentric Guideline of highly unusual provenance

3 1 which, unless carefully applied, can easily generate unreasonable results”); cf. Kimbrough v. 2 United States, 552 U.S. 85, 109–10 (2007) (given that the crack cocaine Guidelines did “not 3 exemplify the Commission’s exercise of its characteristic institutional role[,] . . . it would not 4 be an abuse of discretion for a district court to” vary from the Guidelines even in a typical 5 case). Aside from disputing the sufficiency of the statistical evidence relied upon by the 6 Commission in the development of § 2L.1.2, however, Donoteo-Reyes does not identify any 7 specific inconsistencies with past Commission practice that should lead sentencing courts to 8 routinely discount the Guideline. The district court therefore did not abuse its discretion by 9 declining to vary from the Guidelines range based on a policy disagreement with § 2L1.2.

10 Further, that the § 2L1.2(b)(3) enhancement applies only to defendants who have 11 already been sentenced on their post-removal offenses—and not to those who are awaiting 12 sentencing for similar convictions—does not establish that Donoteo-Reyes’s sentence is 13 unreasonable. Section 2L1.2, which links the enhancements that it recommends to the length 14 of the sentence received for the relevant post-removal offense, reasonably accommodates 15 the Sentencing Commission’s interest in ensuring that enhancements roughly align with the 16 severity of the post-removal conviction. U.S.S.G., Appendix C, Amend. 802. In Donoteo- 17 Reyes’s case, the enhancement accurately reflects the fact that he committed a serious crime 18 after being removed from and reentering the country. Cf. Salas-Miranda, 831 F. App’x at 45 19 (“Had Salas-Miranda’s federal sentencing preceded his state court conviction, that quirk of 20 timing would have resulted in a Guidelines range that failed to capture the full extent of his 21 criminal conduct.”). That the 10-level enhancement would not have applied had he been 22 convicted of manslaughter before, but sentenced in state court after, his sentencing on the 23 federal crimes is a happenstance that does not render the application called for by the 24 Guidelines unreasonable.

25 Nor does the Guideline create unreasonable results merely because most defendants 26 to whom § 2L1.2(b)(3)(A) applies will end up with a Guidelines range starting at or near the 27 statutory maximum of 24 months for the unlawful reentry offense. Unlike the Guideline 28 enhancements at issue Dorvee, which we observed caused even ordinary first-time offenders 29 to qualify for sentences near the statutory maximum “based solely on sentencing

4 1 enhancements that are all but inherent to the crime of conviction,” 616 F.3d at 186, the 2 sentencing enhancement Donoteo-Reyes received applies only to defendants who 3 committed a felony for which they were sentenced to five years or more after previously 4 being removed—conduct that is not inherent to an unlawful reentry offense. Instead, those 5 individuals who are convicted of illegal reentry but who either (1) did not commit an offense 6 after their prior removal, or (2) were convicted of an offense for which they received a 7 sentence of less than five years, would be subject to either no enhancement or a lesser 8 enhancement, and thus a lower Guidelines range. See U.S.S.G. § 2L1.2. Section 2L1.2 9 therefore appropriately takes account of variations among defendants based on the severity 10 of any offenses committed after their unlawful reentry into the United States.

11 Donoteo-Reyes’s final objection to the district court’s application of § 2L1.2—that 12 applying the Guideline means improperly double-counting conduct recognized through his 13 criminal history points—is foreclosed by precedent. As we explained with respect to the 14 prior version of § 2L1.2, and as applies equally here, it is “well-established . . . that a district 15 court does not err when it uses a prior offense to calculate both the offense level and the 16 criminal history category to determine the correct Guidelines range in unlawful reentry 17 cases.” United States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006) (emphasis omitted).

18 We therefore find no error in the district court’s application of § 2L1.2(b)(3)(A) to 19 calculate Donoteo-Reyes’s Guidelines range.

20 B. U.S.S.G. § 5G1.3

21 Citing § 5G1.3, Donoteo-Reyes also takes issue with the district court’s order that he 22 serve his federal sentence consecutively to, rather than concurrently with, his state sentence 23 for the manslaughter offenses. Relatedly, he objects to its denial of an adjustment for time 24 served. We find no abuse of discretion in the district court’s decisions.

25 In relevant part, § 5G1.3 and its application notes concern whether, in the case of a 26 defendant already subject to an undischarged term of imprisonment, the sentencing court 27 should impose the instant sentence to run concurrently with, or consecutively to, the 28 undischarged term of imprisonment, and whether the court should adjust the sentence for

5 1 time served. U.S.S.G. § 5G1.3. We review de novo the sentencing court’s ruling as to which 2 subsection of § 5G1.3 applies, United States v. Brennan, 395 F.3d 59, 66 (2d Cir. 2005), but 3 assess factual findings underlying that determination for clear error, United States v. Curry, 764 4 F. App’x 29, 31 (2d Cir. 2019) (citing United States v. Martin, 157 F.3d 46, 50 (2d Cir. 1998)). 5 Application notes accompanying the Guidelines are “given controlling weight unless they: 6 (1) conflict with a federal statute, (2) violate the Constitution, or (3) are plainly erroneous or 7 inconsistent with the Guidelines provision they purport to interpret.” United States v. Moore, 8 916 F.3d 231, 237 (2d Cir. 2019).

9 Here, the district court concluded that Donoteo-Reyes was subject to § 5G1.3(d). 10 That section provides that “the sentence for the instant offense may be imposed to run 11 concurrently, partially concurrently, or consecutively to the prior undischarged term of 12 imprisonment to achieve a reasonable punishment for the instant offense” in any case not 13 covered by the other subsections. U.S.S.G. § 5G1.3(d). As relevant here, subsection (b) of 14 § 5G1.3 provides that the sentence should be imposed to run concurrently with the 15 undischarged term, and the sentencing court should grant an adjustment for time served, if 16 that term of imprisonment resulted from an offense that is “relevant conduct” to the instant 17 offense. U.S.S.G. § 5G1.3(b).

18 We understand Donoteo-Reyes to argue that he would have been eligible for a 19 concurrent sentence and an adjustment for time served under § 5G1.3(b) if it were not for 20 commentary in the application notes to § 5G1.3 and § 2L1.2. Those notes advise that (1) 21 U.S.S.G. § 5G1.3(b) does not apply to prior offenses for which the defendant received an 22 offense level increase under § 2L1.2 because such offenses are not “relevant conduct” to the 23 instant offense as defined by § 1B1.3(a)(1), (a)(2), or (a)(3), see U.S.S.G. § 5G1.3 cmt. 2(B); 24 and (2) unlawful reentry defendants who are located by immigration authorities while serving 25 time in state custody, as Donoteo-Reyes was, are not covered by § 5G1.3(b), see U.S.S.G. § 26 2L1.2 cmt. 7. But Donoteo-Reyes does not explain how these application notes are plainly 27 inconsistent, as Moore requires, with § 5G1.3(b), which expressly applies only if the term of 28 imprisonment resulted from an offense that is “relevant conduct” to the instant offense. It is 29 not clear why the conduct underlying Donoteo-Reyes’s manslaughter convictions should be

6 1 considered relevant conduct to his unlawful reentry offense such that § 5G1.3(b) would 2 apply, even without the application notes. Absent further elaboration of this argument, we 3 cannot conclude that the district court erred in applying subsection (d) rather than 4 subsection (b) when it fashioned Donoteo-Reyes’s sentence.

5 The district court did not abuse its discretion in applying § 5G1.3(d) by ordering that 6 the federal sentence be served consecutively to the state sentence. See United States v. 7 Rodriguez, 715 F.3d 451, 452 (2d Cir. 2013). The court considered facts relevant to whether a 8 concurrent or consecutive sentence would “achieve a reasonable punishment for the instant 9 offense,” U.S.S.G. § 5G1.3(d), taking into account that Donoteo-Reyes committed a crime 10 “that can’t be tolerated” after his unlawful reentry. App’x at 357.

11 We thus find no basis for disturbing the district court’s decision to impose a 12 consecutive sentence without an adjustment for time served.

13 C. Substantive reasonableness

14 Finally, Donoteo-Reyes argues that his sentence is substantively unreasonable, 15 proposing that “it is clear that [the] federal sentence was based almost entirely on the crime 16 for which he was convicted in state court and only nominally on the illegal reentry and 17 misuse of documents offense.” Appellant’s Br. at 40. While he is correct that the district 18 court took his post-reentry conduct into account when deciding upon the sentence, we 19 cannot agree that its decision to impose a 30-month sentence on the document misuse 20 counts and a 24-month sentence on the illegal reentry count was outside “the range of 21 permissible decisions.” Cavera, 550 F.3d at 189. Donoteo-Reyes identifies no facts related to 22 the sentencing factors identified in 18 U.S.C. § 3553(a) that would counsel in favor of a 23 lower sentence. The district court reasonably concluded that a 30-month total sentence—far 24 below the 120-month sentence requested by the government and the 10-year statutory 25 maximum for the document misuse offenses, see 18 U.S.C. § 1546(a)—was necessary given 26 Donoteo-Reyes’s repeated unlawful entries and his subsequent commission of two serious 27 crimes while he was working using false documents.

28 * * *

7 1 We have considered Donoteo-Reyes’s remaining arguments and find in them no basis 2 for reversal. The judgment of the district court is therefore AFFIRMED.

3 FOR THE COURT:

4 Catherine O’Hagan Wolfe, Clerk of Court