24-2960-cr United States v. Garcia-Gonzalez
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of September, two thousand twenty-five.
PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, BETH ROBINSON, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 24-2960-cr
JOSE LUIS GARCIA-GONZALEZ,
Defendant-Appellant. _____________________________________
FOR APPELLEE: Margaret N. Vasu and Jacob R. Fiddelman, Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, New York.
FOR DEFENDANT-APPELLANT: Yuanchung Lee, Federal Defenders of New York, Inc., New York, New York. Appeal from a judgment of the United States District Court for the Southern District of
New York (Cathy Seibel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court, entered on October 25, 2024, is AFFIRMED.
Defendant-Appellant Jose Luis Garcia-Gonzalez appeals from the district court’s judgment
of conviction following his guilty plea to a one-count indictment charging him with illegal reentry
into the United States, in violation of 8 U.S.C. § 1326(a). The district court sentenced Garcia-
Gonzalez principally to 21 months’ imprisonment, to be served consecutively to a three-year state
sentence imposed in 2024 for attempted criminal sexual act by forcible compulsion in the first
degree, in violation of New York Penal Law § 130.50. Garcia-Gonzalez’s sole challenge on appeal
is to the substantive reasonableness of his sentence. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to
explain our decision to affirm.
We review a challenge to the substantive reasonableness of a sentence under a “deferential
abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)
(citation omitted). Under that standard, “we will set aside only those sentences that are so
shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them
to stand would damage the administration of justice.” United States v. Muzio, 966 F.3d 61, 64 (2d
Cir. 2020) (internal quotation marks and citation omitted). We do not “substitute our own judgment
for the district court’s on the question of what is sufficient to meet the [18 U.S.C.] § 3553(a)
considerations in any particular case . . . [but] will instead set aside a district court’s substantive
determination only in exceptional cases where the trial court’s decision cannot be located within
the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks and citation
2 omitted). Moreover, although there is no presumption that a sentence within the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range is reasonable, “in the overwhelming
majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences
that would be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d
19, 27 (2d Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007).
Here, we discern no abuse of discretion in the district court’s imposition of the 21-month
sentence, which was at the high end of the advisory Guidelines range of 15 to 21 months’
imprisonment. The district court carefully explained its reasoning for the 21-month sentence under
the sentencing factors set forth in 18 U.S.C. § 3553(a). For example, the district court emphasized
that, based upon his approximately 20 illegal reentries into the United States, including two prior
federal convictions for that offense, Garcia-Gonzalez had “violat[ed] the immigration laws a jaw-
dropping number of times” and that “just the quantity of immigration violations here makes this
among the more serious versions of this offense that one sees.” App’x at 67–68. Moreover, the
district court noted his “terrible record,” which includes other prior convictions for assault and
attempted criminal sexual act in the first degree by forcible compulsion. Id. at 68–69.
In addition to its reliance on the nature and circumstances of the offense, as well as his
criminal record, the district court explained that “deterrence [was] a big factor” in the sentence
because the district court was “very, very concerned that we’re just going to have the same situation
again, that Mr. Garcia[-]Gonzalez, whenever he gets out, is going to try to come back.” Id. at 71.
Indeed, the district court highlighted that it had “rarely . . . seen a defendant as to whom [it] was
this sure was going to commit the same crime again.” Id. at 69. The district court further noted
that it had considered the need to avoid unwarranted sentencing disparities among similarly
situated defendants, as well as the other § 3553(a) factors that it had not specifically discussed.
3 Based upon the district court’s reasoned analysis, we conclude that the § 3553(a) factors, upon
which it relied to arrive at the 21-month sentence, “can bear the weight assigned [them] under the
totality of [the] circumstances,” Cavera, 550 F.3d at 191, and that the sentence was not “shockingly
high . . . or otherwise unsupportable as a matter of law,” Muzio, 966 F.3d at 64.
In reaching our determination, we have considered Garcia-Gonzalez’s arguments to the
contrary and find them unpersuasive. First, Garcia-Gonzalez argues that his sentence was
substantively unreasonable because U.S.S.G. § 2L1.2 impermissibly “double-counted” his 2023
state conviction by enhancing both his offense level and his criminal history score. As a threshold
matter, Garcia-Gonzalez never raised this issue below and, thus, the district court did not abuse its
discretion by failing to explicitly address this issue. See Fernandez, 443 F.3d at 30; see also United
States v. Rojas, 361 F. App’x 233, 234 (2d Cir. 2010) (summary order) (“The Supreme Court has
allowed district courts to sentence below a guideline range due to a policy disagreement; but it has
never required them to first affirmatively state whether or not they disagree with sentencing
guidelines as a policy matter. Further, simply because a district court does not mention a relevant
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24-2960-cr United States v. Garcia-Gonzalez
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of September, two thousand twenty-five.
PRESENT: RICHARD C. WESLEY, JOSEPH F. BIANCO, BETH ROBINSON, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 24-2960-cr
JOSE LUIS GARCIA-GONZALEZ,
Defendant-Appellant. _____________________________________
FOR APPELLEE: Margaret N. Vasu and Jacob R. Fiddelman, Assistant United States Attorneys, for Jay Clayton, United States Attorney for the Southern District of New York, New York, New York.
FOR DEFENDANT-APPELLANT: Yuanchung Lee, Federal Defenders of New York, Inc., New York, New York. Appeal from a judgment of the United States District Court for the Southern District of
New York (Cathy Seibel, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court, entered on October 25, 2024, is AFFIRMED.
Defendant-Appellant Jose Luis Garcia-Gonzalez appeals from the district court’s judgment
of conviction following his guilty plea to a one-count indictment charging him with illegal reentry
into the United States, in violation of 8 U.S.C. § 1326(a). The district court sentenced Garcia-
Gonzalez principally to 21 months’ imprisonment, to be served consecutively to a three-year state
sentence imposed in 2024 for attempted criminal sexual act by forcible compulsion in the first
degree, in violation of New York Penal Law § 130.50. Garcia-Gonzalez’s sole challenge on appeal
is to the substantive reasonableness of his sentence. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to
explain our decision to affirm.
We review a challenge to the substantive reasonableness of a sentence under a “deferential
abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)
(citation omitted). Under that standard, “we will set aside only those sentences that are so
shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them
to stand would damage the administration of justice.” United States v. Muzio, 966 F.3d 61, 64 (2d
Cir. 2020) (internal quotation marks and citation omitted). We do not “substitute our own judgment
for the district court’s on the question of what is sufficient to meet the [18 U.S.C.] § 3553(a)
considerations in any particular case . . . [but] will instead set aside a district court’s substantive
determination only in exceptional cases where the trial court’s decision cannot be located within
the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks and citation
2 omitted). Moreover, although there is no presumption that a sentence within the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range is reasonable, “in the overwhelming
majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences
that would be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d
19, 27 (2d Cir. 2006), abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007).
Here, we discern no abuse of discretion in the district court’s imposition of the 21-month
sentence, which was at the high end of the advisory Guidelines range of 15 to 21 months’
imprisonment. The district court carefully explained its reasoning for the 21-month sentence under
the sentencing factors set forth in 18 U.S.C. § 3553(a). For example, the district court emphasized
that, based upon his approximately 20 illegal reentries into the United States, including two prior
federal convictions for that offense, Garcia-Gonzalez had “violat[ed] the immigration laws a jaw-
dropping number of times” and that “just the quantity of immigration violations here makes this
among the more serious versions of this offense that one sees.” App’x at 67–68. Moreover, the
district court noted his “terrible record,” which includes other prior convictions for assault and
attempted criminal sexual act in the first degree by forcible compulsion. Id. at 68–69.
In addition to its reliance on the nature and circumstances of the offense, as well as his
criminal record, the district court explained that “deterrence [was] a big factor” in the sentence
because the district court was “very, very concerned that we’re just going to have the same situation
again, that Mr. Garcia[-]Gonzalez, whenever he gets out, is going to try to come back.” Id. at 71.
Indeed, the district court highlighted that it had “rarely . . . seen a defendant as to whom [it] was
this sure was going to commit the same crime again.” Id. at 69. The district court further noted
that it had considered the need to avoid unwarranted sentencing disparities among similarly
situated defendants, as well as the other § 3553(a) factors that it had not specifically discussed.
3 Based upon the district court’s reasoned analysis, we conclude that the § 3553(a) factors, upon
which it relied to arrive at the 21-month sentence, “can bear the weight assigned [them] under the
totality of [the] circumstances,” Cavera, 550 F.3d at 191, and that the sentence was not “shockingly
high . . . or otherwise unsupportable as a matter of law,” Muzio, 966 F.3d at 64.
In reaching our determination, we have considered Garcia-Gonzalez’s arguments to the
contrary and find them unpersuasive. First, Garcia-Gonzalez argues that his sentence was
substantively unreasonable because U.S.S.G. § 2L1.2 impermissibly “double-counted” his 2023
state conviction by enhancing both his offense level and his criminal history score. As a threshold
matter, Garcia-Gonzalez never raised this issue below and, thus, the district court did not abuse its
discretion by failing to explicitly address this issue. See Fernandez, 443 F.3d at 30; see also United
States v. Rojas, 361 F. App’x 233, 234 (2d Cir. 2010) (summary order) (“The Supreme Court has
allowed district courts to sentence below a guideline range due to a policy disagreement; but it has
never required them to first affirmatively state whether or not they disagree with sentencing
guidelines as a policy matter. Further, simply because a district court does not mention a relevant
consideration does not mean it failed to give it consideration.” (citations omitted) (emphases in
original)). Furthermore, “[i]t is well-established in this Circuit that a district court does not err
when it uses a prior offense to calculate both the offense level and the criminal history category to
determine the correct Guidelines range in unlawful reentry cases,” and Garcia-Gonzalez has failed
to establish that doing so here resulted in a substantively unreasonable sentence. United States v.
Pereira, 465 F.3d 515, 522 (2d Cir. 2006) (emphases in original).
Second, Garcia-Gonzalez asserts that the 21-month sentence is “an unduly harsh penalty”
in light of his mitigating factors, including, among others, his difficult upbringing, his family
circumstances, and his reasons for returning to United States—namely, a desire to be with his
4 family and avoid the risk of violence he faced in Mexico. Appellant’s Br. at 11. The district court
explicitly acknowledged its consideration of these mitigating factors. See, e.g., App’x at 68 (“I
don’t doubt that he keeps coming back to take care of his family, and this is a heartbreaking case.”);
id. at 69 (“I am sure he is dedicated to his children, I’m sure he is hard-working, I’m sure he feels
terrible that they are suffering because of him, and all that is to his credit.”); id. at 70 (“And I
understand there’s some fear of going back to the town [in Mexico] where there’s some kind of
family dispute going on, a dispute between two families.”). However, the district court reasonably
determined, in imposing the 21-month sentence, that the mitigating factors were outweighed by
the other § 3553(a) factors discussed above. Where, as here, “the ultimate sentence is reasonable
and the sentencing judge did not commit procedural error in imposing that sentence, we will not
second guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific
argument made pursuant to that factor.” Fernandez, 443 F.3d at 34.
In sum, we conclude that the sentence was substantively reasonable.
* * *
We have considered Garcia Gonzalez’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court