U.S. v. Pereira

• Decision Date: 13 October 2006
• Docket Number: Docket No. 05-5969-CR.
• Citation: 465 F.3d 515
• Parties: UNITED STATES of America, Appellee, v. Marvin PEREIRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

465 F.3d 515

UNITED STATES of America, Appellee, v. Marvin PEREIRA, Defendant-Appellant.

Docket No. 05-5969-CR.

United States Court of Appeals, Second Circuit.

Argued: June 23, 2006.

Decided: October 13, 2006.

Evan C. Williams, Assistant United States Attorney for Roslynn R. Mauskopf, United States Attorney (Emily Berger, Assistant United States Attorney, of counsel), Eastern District of New York, for Appellee.

Richard A. Miller (Jacqueline M. Skubik, on the brief), Miller & Skubik LLP, Islandia, NY, for Defendant-Appellant.

Before MINER, LEVAL, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge.

Defendant-appellant Marvin Pereira appeals from a judgment entered on October 19, 2005, in the United States District Court for the Eastern District of New York (Feuerstein, J.), following a guilty plea. Pereira, a citizen of El Salvador, pled guilty to illegally reentering the United States after having been deported following his 1998 conviction for commission of an aggravated felony. The district court sentenced him to 62 months imprisonment and three years supervised release. Pereira raises a host of challenges to his sentence. Most significantly, he argues that the district court, when calculating the applicable sentence range under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2, improperly increased his offense level on the basis of a 1998 conviction, for which he was adjudicated a youthful offender under New York State law. Because we hold that the district court correctly determined that the 1998 conviction mandated a 16-level enhancement to the base offense level, and because we reject the remainder of the defendant's challenges to his sentence, we affirm the judgment of the district court.

BACKGROUND

A. The Guilty Plea and Prior Offenses

Pereira, who first entered the United States on June, 13, 1995, pled guilty to unlawful reentry following deportation after a conviction for the commission of an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Pereira's predicate felony occurred on September 11, 1997, when he and two accomplices robbed an individual at gunpoint. When apprehended, the defendant, then sixteen years old, was found in possession of a stolen automobile. On January 28, 1998, he was convicted by an adult court of two counts of robbery in the first degree and one count of criminal possession of stolen property in the fourth degree. He was sentenced on each count to a term of one-to-three years incarceration, to run concurrently. Pursuant to New York law, he was adjudicated a "youthful offender" with respect to these convictions.¹ Pereira served his sentence in an adult facility in upstate New York. Following his release from prison and his commission of various parole violations, he was deported to El Salvador on June 6, 2000.

On November 11, 2003, Pereira was arrested in Huntington Station, New York for loitering and possession of a fraudulent Social Security card. He pled guilty to forgery in the third degree, a misdemeanor, and was sentenced to fifteen days in custody. After his arrest, Immigration and Custody Enforcement ("ICE") agents interviewed Pereira, who admitted to having been deported to El Salvador in 2000. Upon investigation, the ICE officials determined that Pereira had not applied for, or been otherwise granted, permission from the Attorney General to reenter the United States. A grand jury subsequently indicted Pereira on two counts: (1) unlawful reentry following conviction for an aggravated felony, and (2) possession of a forged document. He pled guilty to the first count on June 17, 2005.

B. The Sentencing

i. The Presentence Investigative Report

The United State Probation Office ("Probation Office") prepared a Presentence Investigative Report ("PSR") for Pereira. It found that his base offense level was 8. On account of his 1998 robbery conviction, the PSR recommended that the offense level should be increased by 16 levels. The report acknowledged that Pereira was adjudicated as a youthful offender for this offense but pointed out that "pursuant to Application Note 1(a)(iv) of the Commentary to Guideline 2L1.2,[²] and per the guidance found in United States v. Cuello, 357 F.3d 162 (2d Cir.2004), a New York State youthful offender adjudication may be considered an adult felony conviction for the purposes of calculating a defendant's base offense level." It further noted that "[a]ccording to state penal law, youthful offenders are treated as adults in many respects, despite the terminology, and those convicted of a felony are committed, as are adult felons, to the custody of New York's Department of Correctional Services." The PSR then deducted 3 points for acceptance of responsibility, for a total offense level of 21. The report determined that Pereira's offenses, including the 1998 robbery conviction, resulted in a total of 3 criminal history points, and a criminal history category of II. Based on the total offense level of 21 and this criminal history category, the report found the relevant Guidelines range to be 41 to 51 months. The appellant objected to the report's calculations in a letter he submitted to the sentencing judge. The government and the Probation Office both defended the calculations in responses to the appellant's letter.

ii. The Sentencing Proceeding

On October 19, 2005, Judge Feuerstein conducted the sentencing proceeding challenged here. Pereira's attorney brought up the "issue of whether the youthful offender adjudication that occurred early on in his life should be counted." Judge Feuerstein stated that she believed the government's interpretation "of the case cited," apparently referring to Cuello, "was correct, and I would be inclined, particularly in light of the crime involved here, to view it as an adult conviction." The district judge proceeded to sentence Pereira to 62 months imprisonment, as well as three years supervised release with the special condition that he participate in substance-abuse treatment. Subsequent to the judge's imposition of the sentence, the following exchange occurred between the district court and the assistant U.S. attorney:

Government: Now that the Court has imposed the sentence, it's obvious from the Court's 62-month sentence, the Court understands that the sentencing guidelines which are 41 to 51 months are advisory.

The Court: Of course.

Government: And 3553, all the factors set forth.

The Court: I have.

Government: Your Honor, on appeal, and I expect there will be an appeal in this case because there was no waiver, the issue may be framed such that if the Second Circuit were to conclude that the 16 point enhancement based upon the youthful offender conviction was somehow erroneous, the question will be whether or not that somehow appreciably affected the Court's sentence. So I would ask would the Court be willing to state would you have imposed the 62-month sentence?

The Court: I would have. Because the guidelines are only advisory, and I based my determination on prior conduct, including convictions, and the present course of conduct, and the person's background and likelihood of rehabilitation, and their expression of remorse.

DISCUSSION

We review both Guidelines and non-Guidelines sentences for reasonableness. United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.2006). A sentence may be deemed "unreasonable" for a variety of reasons. Most obviously, if the terms of the sentence do not necessarily reflect the objectives of sentencing upon consideration of all the facts, the sentence may be set aside as "unreasonable." See, e.g., United States v. Rattoballi, 452 F.3d 127, 132-37 (2d Cir.2006). In addition, a sentence may (but need not necessarily) be vacated as "unreasonable" because some steps taken by the sentencing court in determining or imposing the sentence did not comport with the requirements of law, either substantive or procedural. For example, the court is required before passing sentence to "consider" how the prescriptions of the Guidelines would treat the case. See United States v. Crosby, 397 F.3d 103, 115 (2d Cir.2005). If the court fails to follow that required procedure, the sentence may be found unreasonable. See, e.g., United States v. Fuller, 426 F.3d 556, 560 (2d Cir.2005). A finding of unreasonableness can result also from substantive errors made in the course of consideration of the Guidelines' standards. For example, in United States v. Rubenstein, 403 F.3d 93, 100-01 (2d Cir.2005), we vacated a sentence for "unreasonableness" because, in considering what sentence the Guidelines would have prescribed, the court erroneously concluded that a four-level enhancement for permitless transportation of a hazardous or toxic substance applied, and that erroneous conclusion might have affected the court's ultimate determination of the sentence.³

Pereira challenges only the reasonableness of his sentence. He contends that the district court erred in its identification of the correct Guidelines range, in its consideration of the other § 3553(a) sentencing factors,⁴ and in the adequacy of the explanation it gave for its sentence.⁵

With respect to its determination of the applicable Guidelines range, Pereira argues that the district court improperly (1) increased his offense level on the basis of the 1998 robbery conviction, for which he was adjudicated as a youthful offender, and (2) "double counted" the 1998 robbery conviction. As to the district court's consideration of the other § 3553(a) factors, Pereira asserts that it failed (1) to account for disparity between his sentence and those received by defendants convicted of unlawful reentry in jurisdictions with fast-track programs, and (2) to consider fully all the § 3553(a) factors in determining his sentence. Pereira further argues that the district court's explanation of its decision to impose a sentence outside the Guidelines range was insufficient to satisfy the requirements of 18 U.S.C. §...