16-393
United States v. Valdovinos-Diaz

                            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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 15th day of
September, two thousand seventeen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         ROBERT D. SACK,
         CHRISTOPHER F. DRONEY,
               Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                       v.                                            No. 16-393

ALEJANDRO VALDOVINOS-DIAZ,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                               Nicholas F. Reyes, Law Offices of
                                                       Nicholas F. Reyes, Fresno, CA.


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For Appellee:                                            Douglas S. Zolkind, Anna M. Skotko,
                                                         Margaret M. Garnett, for Joon H. Kim,
                                                         Acting United States Attorney for the
                                                         Southern District of New York, New
                                                         York, NY.


        Appeal from the United States District Court for the Southern District of New York

(Seibel, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant Alejandro Valdovinos-Diaz appeals from the judgment of the United States

District Court for the Southern District of New York (Seibel, J.) sentencing him principally to

ninety-six months’ imprisonment for the offense of using interstate commerce facilities in the

commission of murder for hire, in violation of 18 U.S.C. § 1958. Valdovinos-Diaz pled guilty to

the commission of this offense. At sentencing, the district court indicated, without objection from

the government or the defense, that Valdovinos-Diaz’s U.S. Sentencing Guidelines range would

be 151 to 188 months’ imprisonment but for a statutory maximum of 120 months’ imprisonment,

resulting in a Guidelines range of 120 months’ imprisonment. We assume the parties’ familiarity

with the remaining facts, the procedural history of this case, and the issues on appeal.

        On appeal, Valdovinos-Diaz argues that his sentence was both procedurally and

substantively unreasonable. “Reasonableness review is similar to review for abuse of discretion

and may require reversal when the district court’s decision ‘cannot be located within the range of

permissible decisions’ or is based on a legal error or clearly erroneous factual finding.” United

States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007) (quoting United States v. Sindima, 488

F.3d 81, 85 (2d Cir. 2007)). “Procedural reasonableness concerns the procedures a district court
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employs in arriving at a sentence,” while “[s]ubstantive reasonableness involves the length of the

sentence imposed in light of the factors enumerated under 18 U.S.C. § 3553(a).” Id.

“A district court commits procedural error where it fails to calculate the Guidelines

range[,] . . . makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.

It also errs procedurally if it does not consider the § 3553(a) factors, or rests its sentence on a

clearly erroneous finding of fact. Moreover, a district court errs if it fails adequately to explain its

chosen sentence . . . .” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc)

(internal citations omitted). A sentence is substantively unreasonable if it is “outside the range of

permissible decisions,” United States v. Park, 758 F.3d 193, 200 (2d Cir. 2014) (per curiam),

such that “affirming it ‘would . . . damage the administration of justice because the sentence

imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.’”

United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013) (alteration in original) (quoting

United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).

        Here, Valdovinos-Diaz’s sentence was not procedurally or substantively unreasonable. In

particular, the district court, contrary to Valdovinos-Diaz’s argument on appeal, adequately

considered potentially mitigating factors, including the allegations that Valdovinos-Diaz was

afraid of his intended victim; that Valdovinos-Diaz did not intend to go through with the murder

but was told by a confidential informant that he might be harmed otherwise; and that

Valdovinos-Diaz had a history of being a hardworking individual who supported his family and

who had no prior criminal history. The district court nevertheless concluded that in light of

factors including the seriousness of the offense and the need for deterrence and protection of the

public, the lowest appropriate sentence was ninety-six months’ imprisonment. The district court

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also addressed the impact of the intended victim’s allegedly wrongful conduct, finding that

Valdovinos-Diaz’s claimed fear of the intended victim was a mitigating factor, but not to the

extent indicated by Valdovinos-Diaz. Moreover, in light of the seriousness of the offense, we

cannot find that the length of Valdovinos-Diaz’s sentence fell “outside the range of permissible

decisions.” Park, 758 F.3d at 200. Consequently, we decline to accept Valdovinos-Diaz’s

challenges to his sentence.

       We have considered all of Valdovinos-Diaz’s remaining arguments and find them

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.



                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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