618 F.3d 102 (2nd Cir. 2010), 09-1799-cr, United States v. Bonilla

Docket Nº:09-1799-cr.
Citation:618 F.3d 102
Opinion Judge:MINER, Circuit Judge:
Party Name:UNITED STATES of America, Appellee, v. Angel Adan BONILLA, Defendant-Appellant.
Attorney:James F. Greenwald, Assistant Federal Public Defender (James P. Egan, Research & Writing Specialist, on the brief; Alexander Bunin, Federal Public Defender), Syracuse, NY, for Defendant-Appellant. Paul D. Silver, Assistant United States Attorney (Richard R. Southwick, Assistant United States Atto...
Judge Panel:Before: MINER, CABRANES, and WESLEY, Circuit Judges.
Case Date:August 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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618 F.3d 102 (2nd Cir. 2010)

UNITED STATES of America, Appellee,


Angel Adan BONILLA, Defendant-Appellant.

No. 09-1799-cr.

United States Court of Appeals, Second Circuit.

August 13, 2010

Submitted: April 20, 2010.

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James F. Greenwald, Assistant Federal Public Defender (James P. Egan, Research & Writing Specialist, on the brief; Alexander Bunin, Federal Public Defender), Syracuse, NY, for Defendant-Appellant.

Paul D. Silver, Assistant United States Attorney (Richard R. Southwick, Assistant United States Attorney, of counsel; Richard S. Hartunian, United States Attorney for the Northern District of New York), Albany, NY, for Appellee.

Before: MINER, CABRANES, and WESLEY, Circuit Judges.

MINER, Circuit Judge:

Before the Court is a motion by the Government for summary affirmance of a judgment of conviction and sentence entered in the United States District Court for the Northern District of New York (Mordue, J. ). The judgment was entered following a plea of guilty by defendant-appellant Angel Adan Bonilla (" Bonilla" ), a citizen of El Salvador, to the crime of illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a)(1), (a)(2). Bonilla has filed a brief on appeal challenging as procedural error the inclusion of a 16-level enhancement for a prior act of violence, resulting in what Bonilla argues is a substantively unreasonable sentence of imprisonment of 57 months. He also challenges an increase in the maximum sentence for a prior felony conviction. We grant the Government's motion for summary affirmance of the judgment for the reasons given below.


On October 2, 2008, in a single count indictment, a grand jury charged that Bonilla,

an alien, having been previously removed from the United States, did

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knowingly and unlawfully enter and was thereafter found in the United States in Syracuse, New York, not having obtained the express consent of the Attorney General of the United States or his/her successor, the Secretary of the Department of Homeland Security (Title 6 United States Code, Sections 202(3), (4), and 557) for reapplication for admission into the United States.

In violation of Title 8 United States Code, 1326(a)(1) & (2).

On November 25, 2008, Bonilla entered a plea of guilty to the indictment without a Plea Agreement. In a pre-sentence report calculating the applicable United States Sentencing Guidelines range, the probation department found a base offense level of 8 and increased it by 16 levels for a crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The crime of violence referred to was an attempted felonious assault for which Bonilla was convicted in the State of Michigan. The base offense level of 24 thus determined was reduced in the pre-sentence report by 3 levels for acceptance of responsibility. Applying a criminal history level of IV, the probation department calculated a Guidelines range of 57-71 months.

In his sentencing memorandum, Bonilla argued that he did not admit to his conviction for felonious assault in Michigan as part of his plea allocution, that the conviction was not alleged in the indictment or found by a jury beyond a reasonable doubt, and, therefore, that his maximum statutory term of imprisonment was two years, in accordance with 8 U.S.C. § 1326(a) rather than ten years in accordance with 8 U.S.C. § 1326(b)(1).

Bonilla also challenged the appropriateness of the 16-level enhancement applied to his Guidelines range calculation. Conceding that his conviction for attempted felonious assault was a crime of violence that fit within the provisions of U.S.S.G. § 2L1.2(b)(1)(A)(ii), Bonilla sought a variance from the 16-level enhancement, contending that it overstated his potential for dangerousness and resulted in a sentence greater than necessary. In support of these contentions, Bonilla argued that the 16-level enhancement provided for in the Guidelines " was not derived from any empirical study of sentencing data or recidivism" but " was enacted by the Sentencing Commission with little deliberation and no empirical justification." Bonilla also argued in his sentencing memorandum for a downward departure, concluding that a sentence of no more than two years was reasonable, because his adjusted offense level of 24 (including the 16-level enhancement) was comparable to the offense level of much more serious crimes.

In its sentencing memorandum, the Government objected to any sentence below the Guidelines range as calculated in the pre-sentence report. The Government contended that the record revealed no mitigating factors not adequately considered by the Sentencing Commission that would remove the case from the " mine-run" of similar cases and that a sentence within the Guidelines range would be sufficient, but not greater than necessary, to comply with the sentencing purposes set forth in 18 U.S.C. § 3553(a). With respect to the personal characteristics of Bonilla, the Government's pre-sentence memorandum included the following:

The defendant has a lengthy criminal record which includes numerous references to his alcoholism and violent, disruptive behavior which has often required intervention by law enforcement authorities. At least one of these incidents involved the defendant, who was intoxicated, being disarmed by the police. The defendant has also been convicted of a wide variety of offenses. His

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three prior deportations are aggravating factors which are the best possible justification for the sixteen-point enhancement included under the United States Sentencing Guidelines. While the defense argues that there is no empirical evidence supporting this enhancement, the defendant in this case stands as an excellent example of the fact that such repeated violations of the statute should be sanctioned at a higher level.

At the sentencing hearing, counsel for Bonilla again argued that Bonilla was subject to a maximum term of imprisonment of two years due to the Government's failure to allege and prove beyond a reasonable doubt his prior conviction for attempted felonious assault. With regard to the Guidelines sentence, counsel argued that " this particular Guideline is not so well-reasoned as the Sentencing Commission's Guidelines typically tend to be, it is not well-considered," and that " [t]he 16 level enhancement seems to be a rather arbitrary imposition." Acknowledging Bonilla's criminal history, but contending that the Guidelines sentence was " far in excess of what's necessary to satisfy all the requirements" set forth in section 3553(a), counsel accordingly " ask[ed] the Court to impose a substantially lower sentence than 57 months."

In responding arguments, counsel for the Government pointed out that Supreme Court precedent supported the Government's contention that Bonilla's prior attempted felonious assault conviction need not be proved beyond a reasonable doubt and that Bonilla therefore was subject to a term of imprisonment of not more than ten years pursuant to 8 U.S.C. § 1326(b)(1). Government counsel argued that Bonilla " has essentially opted out of our system of laws and ignored them time and time again" by " committing immigration offenses" and " other serious misdemeanor and felony offenses as well." Accordingly, the...

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