U.S. v. Villafuerte, Docket No. 06-1292-cr.

Citation502 F.3d 204
Decision Date21 September 2007
Docket NumberDocket No. 06-1292-cr.
PartiesUNITED STATES of America, Appellee, v. Jorge VILLAFUERTE, also known as George, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Molly Corbett, Assistant Federal Public Defender (Alexander Bunin, Federal Public Defender for the Northern District of New York, George E. Baird, Assistant Federal Public Defender, on the brief), Albany, NY, for Defendant-Appellant.

Brenda K. Sannes, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York, Richard S. Hartunian, Assistant United States Attorney, on the brief), Syracuse, NY, for Appellee.

Before: WALKER and CABRANES, Circuit Judges, and GOLDBERG, Judge.*

JOHN M. WALKER, JR., Circuit Judge:

This case requires us to determine the consequences of a criminal defendant's failure to object to a district court's method of discharging some of its duties under 18 U.S.C. § 3553. Defendant-appellant Jorge Villafuerte appeals from a March 8, 2006 judgment of the district court for the Northern District of New York (Gary L. Sharpe, Judge), arguing that the district court erred by (1) concluding that the sentence recommended by the United States Sentencing Guidelines ("Guidelines") accounted for the factors under § 3553(a) and (2) failing to state adequately its reasons for imposing the chosen sentence, as required by § 3553(c). We need not decide whether there was any error; because Villafuerte failed to object below, both challenges are subject to plain error analysis, and neither alleged error is plain.

BACKGROUND

Villafuerte was indicted with five co-defendants for conspiring to possess with intent to distribute and conspiring to distribute over five hundred grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Villafuerte pled guilty without a plea agreement and, five months later, was sentenced.

The revised Presentence Report ("PSR") calculated a sentencing range under the Guidelines of 70 to 87 months, which the parties did not contest. Villafuerte argued for a below-Guidelines sentence based upon several circumstances: His strong family ties, his drug usage since an early age, his remorse for his crime and its effect on his family, the fact that he had been gainfully employed for most of his adult life, and his lack of prior convictions. Villafuerte also contended that the PSR's recommended sentence was greater than necessary and did not further the purposes of sentencing.

Unpersuaded, the district court adopted the PSR's calculations and proposed sentence range and sentenced Villafuerte to a 70-month term of imprisonment, the bottom of the Guidelines range. It rejected his argument with respect to drug usage, finding that although Villafuerte was a drug abuser, his crime was not "drug-use induced" but rather "money-induced," as shown by his purchase of a house in Texas with some of the profits. The district court sympathized with Villafuerte's family situation but found that the effect of conviction on them was "irrelevant" because it was the natural consequence of Villafuerte's decision to commit the crime. Finally, the court said:

In this case, I find that the advisory guidelines take into account all of the 3553(a) factors and the other factors, in terms of determining what's an appropriate sentence, and I believe that the bottom of the advisory guideline range is the minimum, that is a fair sentence, in terms of the conduct that's involved here.

Villafuerte did not object to this statement or his sentence during the hearing. He now appeals his sentence.

DISCUSSION

We review a district court's sentencing decisions for both substantive and procedural reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). Reasonableness review is similar to review for abuse of discretion and may require reversal when the district court's decision "cannot be located within the range of permissible decisions" or is based on a legal error or clearly erroneous factual finding. United States v. Sindima, 488 F.3d 81, 85 (2d Cir.2007) (internal quotation marks omitted). Substantive reasonableness involves the length of the sentence imposed in light of the factors enumerated under 18 U.S.C. § 3553(a). Rattoballi, 452 F.3d at 132. Procedural reasonableness concerns the procedures a district court employs in arriving at a sentence. United States v. Canova, 485 F.3d 674, 679 (2d Cir.2007). To impose a procedurally reasonable sentence, see United States v. Giovanelli, 464 F.3d 346, 355 (2d Cir.2006) (per curiam); Rattoballi, 452 F.3d at 131, a district court must (1) normally determine the applicable Guidelines range, (2) consider the Guidelines along with the other factors under § 3553(a), and (3) determine whether to impose a Guidelines sentence or a non-Guidelines sentence see United States v. Crosby, 397 F.3d 103, 111-13 (2d Cir.2005); see also United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.2006).

We review the district court's interpretation of the Guidelines de novo and its findings of fact for clear error. Rattoballi, 452 F.3d at 131.

I. Consideration of the 18 U.S.C. § 3553(a) Factors

Villafuerte argues, for the first time on appeal, that his sentence is unreasonable because the district court, in concluding that a sentence under the Guidelines accounted for all the § 3553(a) factors in his case, failed to consider the § 3553(a) factors. 18 U.S.C. § 3553(a) requires the district court to consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established [and recommended by the Guidelines] . . .;

(5) any pertinent policy statement . . . issued by the Sentencing Commission ...;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

We conclude that Villafuerte's failure to object below is fatal to this claim of error.

When a party properly objects to a sentencing error in the district court, we review for harmless error. See United States v. Haynes, 412 F.3d 37, 39 (2d Cir.2005) (per curiam); see also Fed. R.Crim.P. 52(a). By contrast, issues not raised in the trial court because of oversight, including sentencing issues, are normally deemed forfeited on appeal unless they meet our standard for plain error. United States v. Keppler, 2 F.3d 21, 23 (2d Cir.1993); see also Fed.R.Crim.P. 52(b); United States v. Yu-Leung, 51 F.3d 1116, 1121-22 (2d Cir.1995) (distinguishing forfeiture from waiver). We have long stated, however, that we may sometimes review sentencing issues without full plain error analysis "despite lack of objection at trial . . . [although] such consideration is not assured." United States v. Baez, 944 F.2d 88, 90 (2d Cir.1991); see also United States v. Keigue, 318 F.3d 437, 441 (2d Cir.2003) (noting the two types of review for unraised sentencing errors); United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002).

When a defendant does not object to a district court's alleged failure to properly consider all of the § 3553(a) factors, it is unclear under our prior case law whether we review for plain error or under a less rigorous standard.1 See United States v. Pereira, 465 F.3d 515, 520 (2d Cir.2006). Recently, we applied plain error analysis to this sort of error without providing any rationale for the choice. See United States v. Carter, 489 F.3d 528, 537 (2d Cir.2007). In that case, however, we ultimately held that there was no error at all and applied none of the other requirements of plain error, see id. at 540-41, arguably rendering its decision to review for plain error obiter dictum. Regardless of whether Carter prevents us from applying a less rigorous standard, we now expressly hold that rigorous plain error analysis is appropriate for such unpreserved errors.

Vacatur for sentencing error does not always come at the same cost as vacatur for trial error, in part because "noticing unobjected to errors that occur at trial precipitates an entire new trial that could have been avoided by a timely objection, whereas correcting a sentencing error results in, at most, only a remand for resentencing." Sofsky, 287 F.3d at 125; see also United States v. Williams, 399 F.3d 450, 455-57 (2d Cir.2005) (comparing the costs and effects of correcting unpreserved trial errors with correcting unpreserved sentencing errors). This cost differential motivated us in Crosby to mandate limited remands to dispose of unpreserved Booker procedural errors in direct appeals of pre-Booker sentences. See 397 F.3d at 116-17. For similar reasons with respect to sentencing issues in general, we have been more likely to avoid the full rigors of plain error analysis when the sentence was imposed without giving the appellant — whether the government or the defendant — prior notice of the aspect of the sentence challenged on appeal. See Sofsky, 287 F.3d at 125-26; see also United States v. Gilmore, 471 F.3d 64, 66 (2d Cir.2006) (stating, without deciding, that these circumstances might be met for the error at issue); Simmons, 343 F.3d at 80. On the other hand, we have declined to overlook a lack of objection where the sentencing issue was "not particularly novel or complex," see Keppler, 2 F.3d at 24, or where the case had already been...

To continue reading

Request your trial
255 cases
  • United States v. Flores-Mejia
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 10 Mayo 2013
    ...incentives for the parties to help the district court meet its obligations to the public and the parties.” United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir.2007). By encouraging defendants to make objections before the court which is best equipped to resolve the errors efficiently an......
  • U.S. v. Vonner, 05-5295.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 7 Febrero 2008
    ...the hypothetical defendant's claim regarding the adequacy of the district court's explanation. 4. See also United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir.2007) (applying plain-error review to claims that a district court failed to consider properly all of the § 3553(a) factors).......
  • United States v. Broxmeyer
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 28 Agosto 2012
    ...argument is meritless in light of well established precedent. See United States v. Cavera, 550 F.3d at 193;United States v. Villafuerte, 502 F.3d 204, 210 (2d Cir.2007); United States v. Fernandez, 443 F.3d at 30. 32. It would be more than curious to conclude that as a matter of substantive......
  • U.S. v. Quinones, Docket No. 04-5554-cr(L).
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 28 Diciembre 2007
    ......Defendants nevertheless invite us to hold that, in capital cases, some oral questioning is constitutionally necessary to a ... See, e.g., United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir.2007) ("[I]ssues not raised in the trial court . . ., including ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT