21-2967 United States v. Heredia-Sierra
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 31st day of March, two thousand twenty-three. 4 5 PRESENT: MICHAEL H. PARK, 6 EUNICE C. LEE, 7 Circuit Judges, 8 SIDNEY H. STEIN, 1 9 District Judge. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 17 18 Omar Heredia-Sierra, AKA Omar Heredia Sierra, 21-2967 19 AKA Omar Heredia-Siera, AKA Omar Heredia, AKA 20 Omar Silvestre Heredia-Sierra, AKA Pedro Illas, 21 AKA Pedro Elias, AKA Omar Heredia Soto, 22 23 Defendant-Appellant. 2 24 _____________________________________
1 Judge Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation. 2 The Clerk of Court is respectfully directed to amend the caption accordingly.
1 1 FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders 2 of New York, Inc., New York, N.Y. 3 4 FOR APPELLEE: STEVEN J. KOCHEVAR, Assistant United 5 States Attorney (Hagan Scotten, Assistant 6 United States Attorney, on the brief), for 7 Damian Williams, United States Attorney 8 for the Southern District of New York, New 9 York, N.Y. 10 11 Appeal from a judgment of the United States District Court for the Southern District of
12 New York (Briccetti, J.).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
14 DECREED that the judgment of the district court is AFFIRMED.
15 Omar Heredia-Sierra, a citizen of the Dominican Republic, pleaded guilty to one count of
16 unlawfully re-entering the United States in violation of 8 U.S.C. § 1326(a), (b)(2). This was
17 Heredia-Sierra’s second conviction for unlawful re-entry—his first conviction was in 2003.
18 Since being deported in 2006, Heredia-Sierra met his current partner and had five children, all of
19 whom are U.S. citizens and live in the United States. At some point, Heredia-Sierra returned to
20 the United States and was arrested in 2021 for sale of a controlled substance in the third degree
21 under New York law. After pleading guilty in federal court to unlawful re-entry, Heredia-Sierra
22 submitted a pre-sentencing letter seeking a sentence of “eight months’ custody . . . [to] run
23 concurrent with his anticipated state term of imprisonment” for the state drug offense. See
24 District Ct. Dkt. No. 22 at 7. The district court sentenced Heredia-Sierra to eight months’
25 imprisonment to run consecutively to his state sentence. On appeal, Heredia-Sierra argues that it
26 is procedurally unreasonable for his federal sentence to run consecutively to, rather than
27 concurrently with, his state sentence and that the imposition of the federal sentence is not supported
2 1 by the reasons stated by the district court. We assume the parties’ familiarity with the underlying
2 facts, the procedural history of the case, and the issues on appeal.
3 In the sentencing context, “[w]e review the work of district courts under a deferential
4 abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
5 banc) (internal quotation marks omitted). We also review a district court’s decision to impose a
6 consecutive rather than a concurrent sentence for abuse of discretion. See United States v.
7 Rodriguez, 715 F.3d 451, 451-52 (2d Cir. 2013). “A district court commits procedural error [in
8 sentencing] where it fails to calculate (or improperly calculates) the Sentencing Guidelines range,
9 treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors,
10 selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen
11 sentence.” United States v. Degroate, 940 F.3d 167, 174 (2d Cir. 2019) (citation omitted).
12 Heredia-Sierra failed to object to the procedural reasonableness of his sentence at the time of
13 sentencing, so we review for plain error. Id. To show plain error, Heredia-Sierra “must
14 demonstrate that: (1) there is an error; (2) the error is clear or obvious, rather than subject to
15 reasonable dispute; (3) the error affected [his] substantial rights, which in the ordinary case means
16 it affected the outcome of the district court proceedings; and (4) the error seriously affects the
17 fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks
18 omitted).
19 Heredia-Sierra argues that the district court committed procedural error because “the
20 sentence was not justified by the reasons provided.” Appellant’s Br. at 14. We disagree.
21 First, the district court adequately explained Heredia-Sierra’s sentence with reference to
22 the § 3553(a) factors. A sentencing court must “state in open court the reasons for its imposition
3 1 of the particular sentence.” 18 U.S.C. § 3553(c); see also id. § 3584(b) (requiring consideration
2 of the § 3553(a) factors “in determining whether the terms imposed are to be ordered to run
3 concurrently or consecutively”). At the sentencing hearing, the district court explained that “a
4 jail sentence is certainly warranted here, principally to deter the defendant from illegally re-
5 entering a third time.” App’x at A64-65. The district court also considered “the defendant’s
6 criminal history and history of illegal re-entries.” Id. at A65. It explained that the consecutive
7 sentence was appropriate because Heredia-Sierra should “be punished for the illegal re-entry
8 offense in addition to any punishment he receives for an unrelated state drug offense.” Id. at A66.
9 This explanation tracked the § 3553(a) factors, noting Heredia-Sierra’s “history and
10 characteristics” and “the need for the sentence imposed . . . to provide just punishment for the
11 offense” and “to afford adequate deterrence to criminal conduct.” See 18 U.S.C. § 3553(a).
12 The district court’s expression of doubt as to whether the sentence would actually deter the
13 defendant from committing another offense does not render the court’s explanation inadequate.
14 At the hearing, the district court stated: “He’s been now twice convicted of illegal re-entry. He
15 wasn’t deterred the last time. . . . I don’t think he is going to be deterred.” App’x at A63-64. But
16 the need to deter may still justify a sentence even if the district court doubts that the defendant will
17 actually be deterred. Moreover, given that “the sentence ultimately imposed is reasonable in light
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21-2967 United States v. Heredia-Sierra
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 31st day of March, two thousand twenty-three. 4 5 PRESENT: MICHAEL H. PARK, 6 EUNICE C. LEE, 7 Circuit Judges, 8 SIDNEY H. STEIN, 1 9 District Judge. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 17 18 Omar Heredia-Sierra, AKA Omar Heredia Sierra, 21-2967 19 AKA Omar Heredia-Siera, AKA Omar Heredia, AKA 20 Omar Silvestre Heredia-Sierra, AKA Pedro Illas, 21 AKA Pedro Elias, AKA Omar Heredia Soto, 22 23 Defendant-Appellant. 2 24 _____________________________________
1 Judge Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation. 2 The Clerk of Court is respectfully directed to amend the caption accordingly.
1 1 FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders 2 of New York, Inc., New York, N.Y. 3 4 FOR APPELLEE: STEVEN J. KOCHEVAR, Assistant United 5 States Attorney (Hagan Scotten, Assistant 6 United States Attorney, on the brief), for 7 Damian Williams, United States Attorney 8 for the Southern District of New York, New 9 York, N.Y. 10 11 Appeal from a judgment of the United States District Court for the Southern District of
12 New York (Briccetti, J.).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
14 DECREED that the judgment of the district court is AFFIRMED.
15 Omar Heredia-Sierra, a citizen of the Dominican Republic, pleaded guilty to one count of
16 unlawfully re-entering the United States in violation of 8 U.S.C. § 1326(a), (b)(2). This was
17 Heredia-Sierra’s second conviction for unlawful re-entry—his first conviction was in 2003.
18 Since being deported in 2006, Heredia-Sierra met his current partner and had five children, all of
19 whom are U.S. citizens and live in the United States. At some point, Heredia-Sierra returned to
20 the United States and was arrested in 2021 for sale of a controlled substance in the third degree
21 under New York law. After pleading guilty in federal court to unlawful re-entry, Heredia-Sierra
22 submitted a pre-sentencing letter seeking a sentence of “eight months’ custody . . . [to] run
23 concurrent with his anticipated state term of imprisonment” for the state drug offense. See
24 District Ct. Dkt. No. 22 at 7. The district court sentenced Heredia-Sierra to eight months’
25 imprisonment to run consecutively to his state sentence. On appeal, Heredia-Sierra argues that it
26 is procedurally unreasonable for his federal sentence to run consecutively to, rather than
27 concurrently with, his state sentence and that the imposition of the federal sentence is not supported
2 1 by the reasons stated by the district court. We assume the parties’ familiarity with the underlying
2 facts, the procedural history of the case, and the issues on appeal.
3 In the sentencing context, “[w]e review the work of district courts under a deferential
4 abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
5 banc) (internal quotation marks omitted). We also review a district court’s decision to impose a
6 consecutive rather than a concurrent sentence for abuse of discretion. See United States v.
7 Rodriguez, 715 F.3d 451, 451-52 (2d Cir. 2013). “A district court commits procedural error [in
8 sentencing] where it fails to calculate (or improperly calculates) the Sentencing Guidelines range,
9 treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors,
10 selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen
11 sentence.” United States v. Degroate, 940 F.3d 167, 174 (2d Cir. 2019) (citation omitted).
12 Heredia-Sierra failed to object to the procedural reasonableness of his sentence at the time of
13 sentencing, so we review for plain error. Id. To show plain error, Heredia-Sierra “must
14 demonstrate that: (1) there is an error; (2) the error is clear or obvious, rather than subject to
15 reasonable dispute; (3) the error affected [his] substantial rights, which in the ordinary case means
16 it affected the outcome of the district court proceedings; and (4) the error seriously affects the
17 fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks
18 omitted).
19 Heredia-Sierra argues that the district court committed procedural error because “the
20 sentence was not justified by the reasons provided.” Appellant’s Br. at 14. We disagree.
21 First, the district court adequately explained Heredia-Sierra’s sentence with reference to
22 the § 3553(a) factors. A sentencing court must “state in open court the reasons for its imposition
3 1 of the particular sentence.” 18 U.S.C. § 3553(c); see also id. § 3584(b) (requiring consideration
2 of the § 3553(a) factors “in determining whether the terms imposed are to be ordered to run
3 concurrently or consecutively”). At the sentencing hearing, the district court explained that “a
4 jail sentence is certainly warranted here, principally to deter the defendant from illegally re-
5 entering a third time.” App’x at A64-65. The district court also considered “the defendant’s
6 criminal history and history of illegal re-entries.” Id. at A65. It explained that the consecutive
7 sentence was appropriate because Heredia-Sierra should “be punished for the illegal re-entry
8 offense in addition to any punishment he receives for an unrelated state drug offense.” Id. at A66.
9 This explanation tracked the § 3553(a) factors, noting Heredia-Sierra’s “history and
10 characteristics” and “the need for the sentence imposed . . . to provide just punishment for the
11 offense” and “to afford adequate deterrence to criminal conduct.” See 18 U.S.C. § 3553(a).
12 The district court’s expression of doubt as to whether the sentence would actually deter the
13 defendant from committing another offense does not render the court’s explanation inadequate.
14 At the hearing, the district court stated: “He’s been now twice convicted of illegal re-entry. He
15 wasn’t deterred the last time. . . . I don’t think he is going to be deterred.” App’x at A63-64. But
16 the need to deter may still justify a sentence even if the district court doubts that the defendant will
17 actually be deterred. Moreover, given that “the sentence ultimately imposed is reasonable in light
18 of all the circumstances presented,” the “weight to be afforded any given argument made pursuant
19 to one of the § 3553(a) factors is a matter firmly committed to the discretion of the sentencing
20 judge and is beyond our review.” United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006).
21 Thus, the extent to which the district court chose to rely on deterrence as opposed to the other
22 § 3553(a) factors is soundly within its discretion.
4 1 The district court’s comments about Heredia-Sierra’s family similarly do not render its
2 explanation inadequate. Heredia-Sierra invoked his family circumstances as a mitigating factor
3 both in his sentencing submission and at the sentencing hearing. The district court responded by
4 noting that Heredia-Sierra’s situation is “peculiar” and then describing the circumstances as
5 follows:
6 [Heredia-Sierra] knows that his wife is having all these children, five children, 7 that’s a lot, over a period of years, during the entire time of which he’s in the 8 Dominican [Republic]. She’s here, except she goes back and forth, obviously, 9 because well, there are biological reasons for that, and he knows he’s not supposed 10 to come back here and he knows that the last time he came back . . . he received a 11 sentence of almost 4 years in prison. And now I’m hearing from your client that, 12 you know, I’ve got all these children and they need me. . . . Well, to me it almost 13 feels like, and I’m not making this finding exactly, but it almost feels like part of a 14 plan. You know, let’s father a bunch of children, they’re all US citizens, which is 15 great, good for them, and then after a period of time, I’ll come back, and if I get 16 caught again, I’ll just say, well, I had all these children.
17 App’x at A62. The district court went on to distinguish Heredia-Sierra’s situation from one in
18 which a defendant’s family situation would be a mitigating factor in sentencing.
19 There is “[n]o limitation . . . on the information concerning the background, character, and
20 conduct of a person . . . which a court of the United States may receive and consider for the purpose
21 of imposing an appropriate sentence.” 18 U.S.C. § 3661; see Cavera, 550 F.3d at 191 (“[A]t the
22 procedural part of review, we will not categorically proscribe any factor concerning the
23 background, character, and conduct of the defendant, with the exception of invidious factors.”
24 (internal quotation marks omitted)). It was within the district court’s discretion to consider
25 information about Heredia-Sierra’s “conduct” and “character,” and explain why it did not find
26 Heredia-Sierra’s reliance on his family circumstances persuasive. See 18 U.S.C. § 3661.
5 1 Nor do the district court’s comments indicate that it “base[d] its sentence on clearly
2 erroneous facts[.]” United States v. McIntosh, 753 F.3d 388, 394 (2d Cir. 2014). Nothing in the
3 district court’s comments noted above rises to clear error. Indeed, in reference to the court’s
4 comments about Heredia-Sierra’s motivations for having children, the district court said that it was
5 “not making this finding exactly” and was only commenting on what it “almost feels like” to the
6 court. App’x at A62. The facts upon which the district court did base its sentence were
7 thoroughly explored on the record.
8 We thus conclude that the district court’s sentence was not procedurally unreasonable, and
9 therefore not plainly erroneous.
10 We have considered all of Heredia-Sierra’s remaining arguments and find them to be
11 without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk of Court 14