    09-1285-cr
    United States v. Gonzalez



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED 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. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
    York, on the 6th day of April, two thousand ten.

    PRESENT:
                AMALYA L. KEARSE,
                PETER W. HALL,
                            Circuit Judges,
                JED S. RAKOFF,
                            District Judge.*
    __________________________________________

    United States of America,

                                Appellee,

                       v.                                              09-1285-cr

    Juan Saez, also known as King, Franklin Rivera, also known as Fabio Vanegas, also known as
    Francis Rivera, also known as Fabio Riveria, Margaret Maldonado, Eugene Mack, Cynthia
    Simpson,
                           Defendants,

    Jaime Gonzalez, also known as Enzo Grojales, also known as Enso Grajales, also known as Jamie
    Gonzalez,

                      Defendant-Appellant.
    __________________________________________


             *
              The Honorable Jed S. Rakoff, of the United States District Court for the Southern
    District of New York, sitting by designation.

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FOR APPELLANT: B. ALAN SEIDLER ; Law Office of Bernard Alan Seidler, Esq.;
               New York, NY.

FOR APPELLEE:            CAROLYN POKORNY , Assistant United States Attorney, Of Counsel,
                         Brooklyn, NY (Benton J. Campbell, United States Attorney for the Eastern
                         District of New York; Emily Berger, Assistant United States Attorney, Of
                         Counsel, on the brief).

          Appeal from a judgment of the United States District Court for the Eastern District of New

York (Johnson, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Defendant-Appellant Jaime Gonzalez appeals from the district court’s 1) denial of his

motion for recusal and 2) March 26, 2009 order sentencing him principally to life imprisonment.

We assume the parties’ familiarity with the facts, procedural history, and specification of issues on

appeal.

          We review a district court’s denial of a recusal motion for abuse of discretion. United States

v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996). Here, we find none. A judge shall recuse himself if

“his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “[R]ecusal motions are to

be made at the earliest possible moment after obtaining knowledge of facts demonstrating the basis

for such a claim.” LoCascio v. United States, 473 F.3d 493, 497 (2d Cir. 2007) (internal quotation

marks omitted). Gonzalez argues, first, without citing any relevant legal authority, that the district

court erred in denying his motion for recusal on grounds that the sentencing judge did not preside at

trial. This argument has been available to Gonzalez since the original sentencing proceeding in

June 2003. Gonzalez only sought to make this argument, however, following the second sentencing

proceeding before Judge Johnson, and thus it has been waived. Moreover, even if the argument has

not been waived by Gonzalez’s lack of prior objection, he cites no authority, and we find none, for

his contention that the impartiality of a sentencing judge who did not preside at the trial phase is, by

virtue of that fact alone, in dispute. Gonzalez also argues that the string of adverse sentencing

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rulings by the court forms an adequate basis for the judge’s recusal. Recusal motions generally

must be grounded on “extrajudicial matters,” however, and “adverse rulings, without more, will

rarely suffice to provide a reasonable basis for questioning a judge’s impartiality.” Chen v. Chen

Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009). Gonzalez has pointed to nothing

other than the court’s adverse rulings, and such rulings are insufficient. Id.

       Regarding his sentence, Gonzalez makes three principal arguments. He contends first that

because the jury found him guilty of conduct involving 50 grams or more of cocaine base, which

under the Sentencing Guidelines carries a recommended sentence of 121-151 months, a life

sentence violates his Sixth Amendment rights as recognized in Apprendi v. United States, 530 U.S.

466 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Id. at 490. This argument, however, ignores that the statute under which

Gonzalez was convicted prescribes a sentencing range of ten years to life imprisonment. See 21

U.S.C. § 841(b)(1)(A). “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis in original). Based

on Gonzalez’s conviction, a life sentence falls squarely within that “statutory maximum.”

       Gonzalez next argues that the sentence imposed by the district court was unreasonable.

Review for reasonableness is “akin to review for abuse of discretion.” United States v. Fernandez,

443 F.3d 19, 27 (2d Cir. 2006). We review sentences for both procedural and substantive

reasonableness. United States v. Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc). A

sentence is procedurally unreasonable if, for example, a court mistakenly calculates the Guidelines

range, fails adequately to explain its sentence, fails completely to consider the Guidelines or,

conversely, treats the Guidelines as mandatory. Id. at 190. In the absence of evidence showing

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otherwise, it is presumed “that a sentencing judge has faithfully discharged her duty to consider the

statutory factors” listed in 18 U.S.C. § 3553(a). United States v. Verkhoglyad, 516 F.3d 122, 129

(2d Cir. 2008) (internal quotation marks omitted). If we determine that the sentence is procedurally

reasonable, we then turn to its substantive reasonableness. Cavera, 550 F.3d at 189-90. We will

find a sentence substantively unreasonable “only in exceptional cases where the trial court’s

decision cannot be located within the range of permissible decisions.” Id. at 189 (internal quotation

marks omitted).

       Without drawing a distinction between substantive and procedural unreasonableness,

Gonzalez argues that the life sentence is unreasonable on the basis that the jury convicted him of

conduct involving only 50 grams, that he is 44 years old, lacks a criminal history, has family

dependents and a history of employment, and that the 100:1 ratio for penalties for conduct

involving crack cocaine compared with conduct involving powder cocaine is “draconian.” This

Court considered and rejected many of these arguments in an earlier appeal. See United States v.

Gonzalez, 251 Fed. Appx. 58, 59 (2d Cir. 2007). Gonzalez has proffered no persuasive reason for

disturbing those prior rulings. It is clear from the proceedings below that the district court

adequately considered the factors in § 3553(a). We cannot say on the basis of Gonzalez’s

arguments that the sentence imposed was either procedurally or substantively unreasonable.

       Finally, Gonzalez argues that the district court relied on the erroneous belief that Gonzalez

had been previously deported because of criminal activity. In re-imposing the life sentence, the

court stated that it had “tak[en] into consideration all of [the factors in § 3553(a)], including the fact

that this defendant was deported, then he came back to this country and he resumed selling drugs.”

Sentencing Transcript, March 26, 2009, at 5-6. Gonzalez did not object to or even comment upon

this statement at the resentencing hearing. A timely objection is generally required to preserve an

issue for appeal. United States v. Ciak, 102 F.3d 38, 45 (2d Cir. 1996). Issues that are not properly

                                                   4
preserved are reviewed for plain error. Id. “A finding of plain error requires (1) error, (2) that is

plain, and (3) that affects the defendant’s substantial rights.” United States v. Gomez, 580 F.3d 94,

100 (2d Cir. 2009) (internal quotation marks omitted). Nothing in the record shows that in the

course of resentencing Gonzalez the court relied in substantial part on any reason underlying

Gonzalez’s prior deportation. To the extent that the court may have relied on a mistaken

understanding in its explicit consideration of the § 3553(a) factors, it does not rise to the level of

plain error, given that the court previously (a) imposed the same life sentence on Gonzalez, (b)

expressly took into account Gonzalez’s contention that he had never been deported, and (c) stated

that it was “going to impose the same sentence whether he was deported or not.” Sentencing

Transcript, March 31, 2006, at 7-8. Accordingly, any misunderstanding at the most recent

sentencing was at worst a minor factor among all those considered by the court at the time of the

March 26, 2009 sentencing. Whether or not it was error, given its de minimis nature, the error was

not plain, and we will not disturb the sentence on that basis.

         We have considered all of Gonzalez’s remaining arguments and find them to be without

merit.

         For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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