United States v. Lasaga

09-4630-cr United States v. Lasaga

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 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 1 st day of October, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 WILFRED FEINBERG, 9 Circuit Judge. * 10 11 - - - - - - - - - - - - - - - - - - - -X 12 United States of America, 13 Appellee, 14 15 -v.- 09-4630-cr 16 17 Antonio Lasaga, 18 Defendant-Appellant. 19 20 - - - - - - - - - - - - - - - - - - - -X 21

* Because the Honorable José A. Cabranes recused himself prior to oral argument, this appeal is being decided by the remaining two members of the panel pursuant to Second Circuit Internal Operating Procedure E(b).

1 APPEARING FOR APPELLANT: Diane Polan (S. Max Simmons, on 2 the brief), Law Offices of Diane 3 Polan, LLC, New Haven, CT. 4 5 APPEARING FOR APPELLEE: Jonathan S. Freimann, Assistant 6 United States Attorney (David B. 7 Fein, United States Attorney, 8 and Robert M. Spector, Assistant 9 United States Attorney, District 10 of Connecticut, on the brief). 11 12 Appeal from a judgment of the United States District 13 Court for the District of Connecticut (Thompson, J.).

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 15 AND DECREED that the judgment of the district court be 16 AFFIRMED.

17 Defendant-Appellant Antonio Lasaga (“Lasaga”) appeals 18 from a judgment of the United States District Court for the 19 District of Connecticut (Thompson, J.), entered on October 20 23, 2009 (the “Order”), refusing by written decision to 21 resentence Lasaga. The judgment follows this Court’s remand 22 in United States v. Lasaga, 136 F. App’x 428 (2d Cir. 2005), 23 which was issued in light of United States v. Booker, 543 24 U.S. 220 (2005) and United States v. Crosby, 397 F.3d 103 25 (2d Cir. 2005). We assume the parties’ familiarity with the 26 underlying facts, the procedural history, and the issues 27 presented for review.

28 This case returns to us for a third time following the 29 decisions of this Court in United States v. Lasaga, 328 F.3d 30 61 (2d Cir. 2003) (Lasaga I), which remanded for further 31 factual findings with respect to the district court’s upward 32 departure on the basis of psychological harm to a minor 33 victim, and United States v. Lasaga, 136 F. App’x 428 (2d 34 Cir. 2005) (Lasaga II), which remanded for a determination 35 whether resentencing was necessary in light of this Court’s 36 decision in Crosby and instructed the district court to 37 reconsider the criminal history departure “in light of the 38 Supreme Court’s recent decision in Shepard v. United States, 39 544 U.S. 13 (2005) . . . and . . . Williams v. United 40 States, 503 U.S. 193, 201 (1992) . . . .” Lasaga II, 136 F. 41 App’x at 433.

1 On remand, the district court solicited and received 2 resentencing memoranda from the government and Lasaga, and 3 concluded that it would not have imposed a different 4 sentence had the Sentencing Guidelines been advisory at the 5 time the sentence was imposed. In so doing, the district 6 court rejected Lasaga’s argument that the court could not 7 enhance the sentence on any basis other than facts admitted 8 by Lasaga or proved to a jury beyond a reasonable doubt; and 9 the court observed that it had already considered all of the 10 mitigating factors set forth in Lasaga’s resentencing 11 memorandum at each of the prior sentencing hearings. With 12 respect to this Court’s instruction concerning the criminal 13 history departure, the district court advised: “Assuming 14 arguendo a Criminal History of Category I, the resulting 15 range under the Sentencing Guidelines is 151 months to 188 16 months, which encompasses the sentence the court continues 17 to view as being the appropriate sentence. Therefore the 18 court need not address the issues of departure to Criminal 19 History II.” United States v. Lasaga, No. 99 cr 122(AWT), 20 Slip Op. at 3-4 (D. Conn. Oct. 23, 2009).

21 In the current appeal, Lasaga cites the district 22 court’s discussion as to whether it would impose the same 23 sentence even without a one-level criminal history 24 enhancement. Lasaga argues that, by recalculating the 25 guideline range, the district court sentenced Lasaga de novo 26 without the benefit of a sentencing hearing and in violation 27 of Fed. R. Crim. P. 32.

28 We review a sentence for reasonableness even after a 29 district court declines to resentence pursuant to Crosby. 30 United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007). 31 The reasonableness review contemplated by Booker requires 32 “consideration not only of the sentence itself, but also of 33 the procedures employed in arriving at the sentence.” 34 United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006). 35 Reasonableness review is “akin to review for abuse of 36 discretion,” which asks “whether the sentencing judge 37 ‘exceeded the bounds of allowable discretion[,] . . . 38 committed an error of law in the course of exercising 39 discretion, or made a clearly erroneous finding of fact.’” 40 Id. at 27 (quoting Crosby, 397 F.3d at 114).

41 Lasaga’s primary appellate contention, that the court 42 in effect imposed a new sentence, does not take into account 43 the district court’s limited obligations in response to a 44 Crosby remand. First, district courts “should obtain the

1 views of counsel, at least in writing, but ‘need not’ 2 require the presence of the Defendant.” Crosby, 397 F.3d at 3 120 (citation omitted). Next, “[u]pon reaching its decision 4 (with or without a hearing) whether to resentence, the 5 district court should either place on the record a decision 6 not to resentence, with an appropriate explanation, or 7 vacate the sentence and, with the Defendant present, 8 resentence in conformity with the [Sentencing Reform Act of 9 1984], [Booker], and [Crosby], including an appropriate 10 explanation.” Id. (citation omitted). Here, the district 11 fulfilled both obligations. Specifically, in deciding not 12 to resentence Lasaga, the district court explained that it 13 had, on two prior occasions, considered all of factors set 14 forth in 18 U.S.C. § 3553(a), together with the mitigating 15 factors set forth in Lasaga’s sentencing memoranda, and 16 concluded that 180 months’ imprisonment was an appropriate 17 sentence.

18 The district court’s discussion of Lasaga’s criminal 19 history did not amount to a de novo sentence; rather, it was 20 an acknowledgment that the criminal history departure would 21 have had no impact on the sentencing, given that either 22 guideline range would have encompassed Lasaga’s ultimate 23 sentence of 180 months. 1 Accordingly, because “the record 24 indicates clearly that the district court would have imposed 25 the same sentence” regardless of whether or not the upward 26 departure applies, any claimed error (assuming that there 27 was error), “may be deemed harmless.” United States v. Jass, 28 569 F.3d 47, 69 (2d Cir. 2009) (internal quotation marks 29 omitted). “As long as the sentencing judge is satisfied 30 that the same sentence would have been imposed no matter 31 which of the two guideline ranges applies, the sentence 32 should stand.” United States v. Bermingham, 855 F.2d 925, 33 934 (2d Cir. 1988).

34 Having affirmed the district court’s judgment, we DENY 35 as moot Lasaga’s motion to hold the appeal in abeyance 36 pending the Supreme Court’s decision in Pepper v. United

1 Following this Court’s remand in Lasaga I, the district court calculated Lasaga’s offense conduct level to be 34 and his criminal history category to be level II. The corresponding sentencing range was 168 months to 210 months. Assuming an offense conduct level of 34 and a criminal history category of level I, the sentencing range would be 151 months to 188 months.

1 States, 130 S. Ct. 3499 (2010). Finding no merit in 2 Lasaga’s remaining arguments, we hereby AFFIRM the district 3 court’s judgment.

4 5 6 FOR THE COURT: 7 CATHERINE O’HAGAN WOLFE, CLERK 8