United States v. Suarez-Martinez

SUMMARY ORDER Miguel Suarez-Martinez appeals from the judgment against him and his sentence of 156 months’ imprisonment for conspiring to commit murder for hire in violation of 18 U.S.C. § 371 and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). He argues that a conspiracy charged under § 371 cannot be a crime of violence within the meaning of § 924(c) and that his sentence was procedurally and substantively unreasonable. We affirm. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. By pleading guilty to violating § 924(c), Suarez-Martinez waived his argument that a conspiracy charged under § 371 cannot be a crime of violence within the meaning of § 924(c). “It is well settled that a defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings.” United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003) (per curiam). Although Suarez-Martinez claims that his present challenge is jurisdictional, we have held that “[i]n order to invoke a district court’s jurisdiction, an indictment need only allege that a defendant committed a federal criminal offense at a stated time and place in terms plainly tracking the language of the relevant statute.” United States v. Rubin, 743 F.3d 31, 38 (2d Cir. 2014). Because the information charging Suarez-Martinez with violating § 924(c) alleged that Suarez-Martinez committed a § 924(c) offense at a specific time and place in terms tracking the language of § 924(c), the district court would still have had jurisdiction over Suarez-Martinez’s case even if a § 371 conspiracy cannot be a crime of violence under § 924(c). See Rubin, 743 F.3d at 37 (discussing Lamar v. United States, 240 U.S. 60, 36 S.Ct. 255, 60 L.Ed. 526 (1916)). Accordingly, Suarez-Martinez’s present challenge to his § 924(c) conviction is not jurisdictional and is therefore waived. With respect to his sentence, Suarez-Martinez first challenges the district court’s finding that he was an experienced killer for hire. We review a district court’s “underlying factual findings with respect to sentencing ... for clear error,” United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam). The district court did not clearly err in finding that Suarez-Martinez was an experienced killer for hire. Suarez-Martinez’s own statements provided ample support for such a finding. Suarez-Martinez also argues that the district court erred in taking into account individuals outside of the United States when applying 18 U.S.C. § 3553(a)(2)(C), which requires a sentencing court to consider “the need ... to protect the public from further crimes of the defendant.” Because Suarez-Martinez did not object below, we review the district court’s interpretation of § 3553(a)(2)(C) for plain error. “We typically will not find [plain] error where the operative legal question is unsettled, including where there is no binding precedent from the Supreme Court or this Court.” United States v. Whab, 355 F.3d 155, 158 (2d Cir. 2004) (internal quotation marks omitted). By acknowledging that we have never held that a district court may not take into account individuals outside of the United States when considering the need to protect the public from a defendant’s further crimes, Suarez-Martinez concedes that the district court did not plainly err. Accordingly, Suarez-Martinez’s sentence was procedurally reasonable. *77 Suarez-Martinez’s sentence was also substantively reasonable. We “identif[y] as substantively unreasonable only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks omitted). In the present case, the district court’s thoughtful consideration of mitigating factors, as well as its discussion of the allegedly unwarranted disparity between Suarez-Martinez’s sentence and that of a similarly situated defendant, support the substantive reasonableness of Suarez-Martinez’s sentence. We have considered all of plaintiff-appellant’s contentions on appeal and have found in them no basis for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.