     12-4755-cr
     United States v. Pena Soltren

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of November, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                Barrington D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               12-4755-cr
16
17       JOSE RAFAEL RIOS CRUZ, MIGUEL CASTRO,
18       ALEJANDRO FIGUEROA,
19                Defendants
20
21       LUIS ARMANDO PENA SOLTREN,
22                Defendant-Appellant.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:                        James E. Neuman, Law Office of
26                                             James E. Neuman, New York, New
27                                             York.
28

                                                  1
 1   FOR APPELLEES:             Ryan P. Poscablo (with Jennifer
 2                              G. Rodgers on the brief),
 3                              Assistant United States
 4                              Attorneys, for Preet Bharara,
 5                              United States Attorney for the
 6                              Southern District of New York.
 7
 8        Appeal from a sentence of the United States District
 9   Court for the Southern District of New York (Hellerstein,
10   J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that defendant’s sentence is AFFIRMED.
14
15        Luis Armando Peña Soltren appeals from a judgment of
16   conviction entered on January 14, 2011, following his guilty
17   plea to conspiracy to commit air piracy and kidnapping in
18   violation of 18 U.S.C. § 371 (1964), 49 U.S.C. § 1472(i)
19   (1964), and 18 U.S.C. § 1201 (1964); interfering with flight
20   crew members in violation of 49 U.S.C. § 1472(j) (1964); and
21   kidnapping in violation of 18 U.S.C. § 1201 (1964). We
22   assume the parties’ familiarity with the underlying facts,
23   the procedural history, and the issues presented for review.
24
25        On November 24, 1968, Peña Soltren--then age 25--was
26   one of three men who hijacked Pan American Airways Flight
27   281, en route from John F. Kennedy International Airport in
28   New York to Puerto Rico. Using guns and knives to gain
29   control of the plane, they forced the pilots to land in
30   Havana.
31
32        Peña Soltren remained in Cuba for more than forty
33   years. In October 2009, he returned to the United States,
34   where he was arrested and prosecuted for the 1968
35   sky-jacking. Pursuant to a plea bargain, Peña Soltren pled
36   guilty to the offenses detailed above.
37
38        This is Peña Soltren’s second sentencing appeal. He
39   was originally to fifteen years’ imprisonment without the
40   possibility of parole. On appeal, we vacated the sentence
41   and remanded for resentencing on the ground that the
42   district court erred in imposing a sentence that excluded
43   the possibility of parole. See United States v. Rios Cruz,
44   481 F. App’x 650, 652 (2d Cir. 2012).

                                  2
 1        In remanding for resentencing de novo, we declined to
 2   reassign the case. We noted that “[c]ontrary to Peña
 3   Soltren’s assertion, Judge Hellerstein did not rely on any
 4   inappropriate factors in imposing sentence. On the
 5   contrary, the record shows that Judge Hellerstein fully
 6   considered Peña Soltren’s mitigating arguments in
 7   determining his sentence and made no error casting a shadow
 8   on the court’s impartiality.” Id.
 9
10        On remand, Judge Hellerstein sentenced Peña Soltren to
11   fifteen years’ imprisonment, with the possibility of parole
12   after five years.
13
14        Peña Soltren’s present appeal argues that the district
15   court’s sentence was substantively and procedurally
16   unreasonable. See United States v. Booker, 543 U.S. 220
17   (2005). The appellate review standard of Booker and its
18   progeny is inapplicable here, however, because Peña
19   Soltren’s offenses pre-dated the Sentencing Guidelines. In
20   a pre-Guidelines case, the sentencing court has “‘wide
21   discretion in imposing sentence, and, . . . if a sentence is
22   within the permissible statutory limits and it does not
23   appear that the court took into account any improper factor,
24   the sentence may not be reviewed on appeal.’” United States
25   v. Ruggiero, 928 F.2d 1289, 1306 (2d Cir. 1987) (quoting
26   United States v. Giraldo, 822 F.2d 205, 210 (2d Cir. 1987)).
27   “In deciding what sentence to impose, ‘a judge may
28   appropriately conduct an inquiry broad in scope, largely
29   unlimited either as to the kind of information he may
30   consider, or the source from which it may come.’” McClain
31   v. United States, 676 F.2d 915, 918 (2d Cir. 1982) (quoting
32   United States v. Tucker, 404 U.S. 443, 446 (1972)). A pre-
33   Guidelines sentence will be “vacated . . . if it is ‘founded
34   at least in part upon misinformation of constitutional
35   magnitude.’” Id. (quoting Tucker, 404 U.S. at 447).
36
37        Like the district court, we are sensitive to Peña
38   Soltren’s difficult personal history, both before and after
39   his crime. There seems to be no reason to question his
40   genuine remorse and his otherwise unblemished record of
41   service to family and community. But we find no error–-much
42   less one of constitutional magnitude--in the district
43   court’s sentencing. The record demonstrates that Judge
44   Hellerstein carefully and seriously reflected on a wide

                                  3
 1   range of relevant and permissible factors before imposing a
 2   sentence within the applicable statutory range. The judge’s
 3   lengthy discussion of appellant’s character and the nature
 4   of his crime leaves no doubt that Peña Soltren’s fate
 5   “caused [Judge Hellerstein] to do a lot of thinking and lose
 6   a lot of sleep.” Tr. of Second Sentencing Hrg., App’x 47.
 7   As in Peña Soltren’s prior appeal, the record demonstrates
 8   that “Judge Hellerstein fully considered Peña Soltren’s
 9   mitigating arguments in determining his sentence and made no
10   error casting a shadow on the court’s impartiality.” Rios
11   Cruz, 481 F. App’x at 650.
12
13        Our review of this pre-Guidelines sentence is narrowly
14   circumscribed. “Because it does not appear that the
15   district court took into account any impermissible factor
16   and because [Peña Soltren] was sentenced within the
17   statutory maximum, we may not review the sentence.” United
18   States v. Vogel, 54 F.3d 49, 51 (2d Cir. 1995).
19
20        Peña Soltren is eligible for parole after five years.
21   He is a worthy candidate for that relief, or for a pardon,
22   notwithstanding that he can find no basis for relief in this
23   Court.
24
25       AFFIRMED.
26
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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