14-4310-cr
United States v. Burgos


                           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 United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of December, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                              No. 14-4310-cr

TOMAS BURGOS, JR., AKA Tomas Burgos Bey,
                                 Defendant-Appellant.
----------------------------------------------------------------------

FOR APPELLANT:                                   Brendan White, White & White, New York,
                                                 New York.

FOR APPELLEE:                                    Steven D. Clymer, Assistant United States
                                                 Attorney (Geoffrey J.L. Brown, Assistant
                                                 United States Attorney, on the brief), for
                                                 Richard S. Hartunian, United States Attorney
                                                 for the Northern District of New York,
                                                 Syracuse, New York.




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       Appeal from a judgment of the United States District Court for the Northern

District of New York (Gary L. Sharpe, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on November 10, 2014, is AFFIRMED.

       Defendant Tomas Burgos, Jr., stands convicted after a guilty plea of causing a

false tax refund claim to be made against the United States. See 18 U.S.C. §§ 2, 287.

Sentenced to a low-end Guidelines term of 37 months’ imprisonment, Burgos argues that

it was procedurally and substantively unreasonable for the district court to deny him a

non-Guidelines sentence in recognition of the difference between his intended loss of

more than a million dollars and actual loss of approximately $90,000.1 We apply “a

particularly deferential form of abuse-of-discretion review” to such claims.         United

States v. Cavera, 550 F.3d 180, 187–88 & n.5 (2d Cir. 2008) (en banc); accord United

States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012). In doing so, we assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Procedural Challenge

       A sentence is procedurally unreasonable if the district court “fails to calculate (or

improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines


1
  Burgos asserts actual loss of less than $50,000. See Def.’s Br. at 4, 6, 7, 17. This,
however, excludes more than $40,000 that the IRS had deducted from Burgos’s tax
refund to offset outstanding income tax debt, as well as child and spousal support
obligations, the latter of which could not be recovered at the time the IRS dishonored the
refund. We need not pursue the actual loss calculation further because we affirm, in any
event, the district court’s reliance on intended loss in imposing Burgos’s sentence.

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as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly

erroneous facts, or fails adequately to explain the chosen sentence.” United States v.

Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks omitted). No such

errors are evident here.

       Burgos does not dispute the district court’s intended loss calculation, which

triggered a 16-point enhancement to his base offense level of 6.              See U.S.S.G.

§ 2B1.1(a), (b) (2014). Nor does he challenge the calculation of his Guidelines range.

Instead, he argues, as he did below, that because the IRS had detected his fraud by 2009,

there was “never a reasonable possibility” that it would have paid any of his subsequent

false refund claims. Def.’s Br. at 10. Thus, Burgos maintains, reliance on intended

loss “greatly overstated” his criminal culpability and “necessarily created a significant

and unwarranted disparity” between himself and a hypothetical defendant who actually

caused such loss. Id. at 10–11. These circumstances do not manifest procedural error.

       First, the refusal to impose a non-Guidelines sentence is not reviewable as

procedural error absent record ambiguity as to the district court’s understanding of its

variance discretion. See United States v. Keller, 539 F.3d 97, 101–02 (2d Cir. 2008).

Such ambiguity is not evident here, where the district court acknowledged Burgos’s

request for a non-Guidelines sentence and the “logic” behind the argument. D.A. 78.

       Burgos nevertheless faults the court for failing to make any findings as to his

argument and seeming not to consider it in imposing his sentence. This argument is

belied by the record, which shows that the district court considered Burgos’s argument

but   identified   and     gave   more   weight   to   other   factors—less   favorable   to

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Burgos—suggesting a failure to accept responsibility for his conduct despite receipt of

U.S.S.G. § 3E1.1(a) consideration. Insofar as Burgos disagrees with the weight the

court afforded competing factors, he fails to demonstrate any abuse of the broad

discretion accorded sentencing judges in that respect. See United States v. Fernandez,

443 F.3d 19, 32 (2d Cir. 2006) (recognizing that weight to be afforded sentencing factors

is “matter firmly committed to the discretion of the sentencing judge” and generally

beyond appellate review).

       The same conclusion obtains as to Burgos’s complaint about the court’s

consideration of the sentencing factors in 18 U.S.C. § 3553(a), including § 3553(a)(6)

(requiring consideration of “need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct”).

“[W]e presume, in the absence of record evidence suggesting otherwise, that a sentencing

judge has faithfully discharged [his] duty to consider the statutory factors,” and “we will

not conclude that a district judge shirked [his] obligation . . . simply because [he] did not

discuss each one individually or did not expressly parse or address every argument

relating to those factors that the defendant advanced.” United States v. Fernandez, 443

F.3d at 30. Thus, Burgos’s argument that the court was required to make any particular

“finding” is meritless. In any event, the record reflects the court’s careful consideration

and rejection of this claim, which it construed “as a motion for a nonguideline sentence.”

D.A. 73; see also id. at 78–80.

       Accordingly, we identify no procedural error in the challenged sentence.



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2.     Substantive Challenge

       A sentence is substantively unreasonable only if it “cannot be located within the

range of permissible decisions” available to a sentencing court, United States v. Cavera,

550 F.3d at 189 (internal quotation marks omitted), which is to say, when the sentence is

so “shockingly high, shockingly low, or otherwise unsupportable as a matter of law” that

allowing it to stand would “damage the administration of justice,” United States v. Rigas,

583 F.3d 108, 123 (2d Cir. 2009). A within-Guidelines sentence will rarely raise such

concerns.   See United States v. Fernandez, 443 F.3d at 27 (recognizing that in

“overwhelming majority of cases, a Guidelines sentence will fall comfortably within the

broad range of sentences that would be reasonable in the particular circumstances”);

accord United States v. Jones, 531 F.3d 163, 178 (2d Cir. 2008).

       Burgos’s substantive challenge to his low-end Guidelines prison sentence of 37

months relies on the same intended loss and disparity arguments supporting his

procedural challenge. They are equally meritless here. The record reflects that Burgos

persistently engaged in tax fraud between December 2008 and April 2011 by filing

numerous returns falsely claiming to be owed refunds in excess of $1 million, receiving

refunds of approximately $200,000, and causing an actual loss of approximately $90,000.

In addition to the loss he intended to cause, Burgos’s culpability was aggravated further

by his demonstrated lack of remorse, specifically noted at sentencing by the district court,

although it did not withdraw the recommended favorable Guidelines adjustment for

acceptance of responsibility. In these circumstances, Burgos cannot demonstrate that a



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37-month sentence was so shockingly high as to be substantively unreasonable. See

United States v. Rigas, 583 F.3d at 123.

3.    Conclusion

      We have considered Burgos’s remaining arguments, and we conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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