14-412-cr; 14-496-cr
United States v. Mendez-Perez; Mendez-Ramirez


                                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 27th day of April, two thousand fifteen.

PRESENT: JOHN M. WALKER, JR.,
                 GUIDO CALABRESI,
                 REENA RAGGI,
                                 Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                              v.                                         No. 14-412-cr
                                                                         (tandem)
MARCOS MENDEZ-PEREZ,
                 Defendant-Appellant,

CARLOS GARCIA-DE LA ROSA, AKA Pirulo, AKA
Miguel, AKA Choqui, MARIA BAUTISTA-PENA, AKA
Maricruz, MIGUEL ANGEL CHE-VELIZ, AKA Miguelon,
MARGARITO DEGANTE, AKA Chachalaco, JAVIER
LEON-CHAVEZ, AKA Ricardo, AKA Ricardito, SERGIO
DEGANTE-GALENO, AKA Huesito, MARIO PEDRO
MARTINEZ-BARRERA, AKA Mickey Mouse, FRANCISCO
JAVIER     MENDEZ-RAMIREZ,   MANUEL      GOMEZ-
BATANA, ALEJANDRO DEGANTE-GALENO, AKA
Celestino Degante Galeno, AKA El Zorro, ISIDRO
DEGANTE-GALENO, AKA Cachorro, AKA El Perro, AKA
Marcos, ALBERTO JESUS MARTINEZ-MIRANDA, AKA
Barbitas, AKA Barbas, AKA FNU LNU, VALENTIN


                                                      1
JIAMEZ-DOLORES, PEDRO DEGANTE-GALENO, AKA
Barbon, AKA Barbas, ISAIAS FLORES-MENDEZ, AKA
Jesus Diaz, AKA Adrian Sanchez-Mendez, AKA Sealed
Defendant 1, AKA Adrian Sanchez Mendez, AKA Jesus
Diaz-Rincon, AKA Chelo, BONIFACIO FLORES-MENDEZ,
AKA Mota, AKA Boni,
                                 Defendants.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                        v.                                               No. 14-496-cr
                                                                         (tandem)
FRANCISCO JAVIER MENDEZ-RAMIREZ,
                   Defendant-Appellant,

ISAIAS FLORES-MENDEZ, AKA Jesus Diaz, AKA Adrian
Sanchez-Mendez, AKA Sealed Defendant 1, AKA Adrian
Sanchez Mendez, AKA Jesus Diaz-Rincon, AKA Chelo,
BONIFACIO FLORES-MENDEZ, AKA Mota, AKA Boni,
CARLOS GARCIA-DE LA ROSA, AKA Pirulo, AKA
Miguel, AKA Choqui, ALEJANDRO DEGANTE-GALENO,
AKA Celestino Degante Galeno, AKA El Zorro, MARIA
BAUTISTA-PENA, AKA Maricruz, MIGUEL ANGEL
CHE-VELIZ, AKA Miguelon, ISIDRO DEGANTE-
GALENO, AKA Cachorro, AKA El Perro, AKA Marcos,
MARGARITO DEGANTE, AKA Chachalaco, VALENTIN
JIAMEZ-DOLORES, ALBERTO JESUS MARTINEZ-
MIRANDA, AKA Barbitas, AKA Barbas, AKA FNU LNU,
PEDRO DEGANTE-GALENO, AKA Barbon, AKA Barbas,
MANUEL GOMEZ-BATANA, JAVIER LEON-CHAVEZ,
AKA Ricardo, AKA Ricardito, SERGIO DEGANTE-
GALENO, AKA Huesito, MARIO PEDRO MARTINEZ-
BARRERA, AKA Mickey Mouse, MARCOS MENDEZ-
PEREZ,
                                 Defendants.
----------------------------------------------------------------------


APPEARING FOR APPELLANTS:                        NEIL B. CHECKMAN, ESQ. (Georgia J.
                                                 Hinde, Esq., on the brief), New York,
                                                 New York, for Marcos Mendez-Perez.




                                                     2
                                         Natali J.H. Todd, Law Offices of Natali J.H.
                                         Todd, P.C., Brooklyn, New York, for Francisco
                                         Javier Mendez-Ramirez.

APPEARING FOR APPELLEE:                  BRIAN A. JACOBS, Assistant United States
                                         Attorney, for Preet Bharara, United States
                                         Attorney for the Southern District of New York,
                                         New York, New York.

      Appeals from judgments of the United States District Court for the Southern

District of New York (Katherine B. Forrest, Judge).1

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 4, 2014 (as to Mendez-Perez) is

AFFIRMED except to the extent we REMAND for such correction as indicated in this

order, and the judgment entered on February 5, 2014 (as to Mendez-Ramirez) is

AFFIRMED as to the incarceratory aspect of the sentence and VACATED and

REMANDED as to the fine.

      Defendants Marcos Mendez-Perez and Francisco Javier Mendez-Ramirez stand

convicted after guilty pleas of one count of conspiracy to violate the Travel Act in

furtherance of a prostitution enterprise. See 18 U.S.C. §§ 371, 1952. Each defendant

was sentenced principally to an above-Guidelines, statutory-maximum term of 60

months’ imprisonment, and each argues on appeal that his sentence is both procedurally

and substantively unreasonable. In addition, Mendez-Perez argues that there is an error

in the written judgment in his case. We assume the parties’ familiarity with the facts

1
  These two appeals are not consolidated, but they were argued and submitted in tandem
and arise from the same underlying case in the district court. Because these two
co-defendants advance similar arguments, their appeals are resolved together in this joint
summary order.

                                            3
and the record of prior proceedings, which we reference only as necessary to explain our

decision to affirm in both cases, except to the extent we remand for correction of the

judgment in Mendez-Perez’s case.

      We review a challenged sentence for “‘reasonableness,’ ‘a particularly deferential

form of abuse-of-discretion review’ that we apply both to the procedures used to arrive at

the sentence (procedural reasonableness) and to the length of the sentence (substantive

reasonableness).”   United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)

(quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc)).

1.    Procedural Unreasonableness

      Defendants contend that the district court committed procedural error (1) by

making clearly erroneous factual findings as to (a) the number of victims, (b) the

psychological harm experienced by those victims, and (c) defendants’ knowledge of the

use of force or coercion by other members of the conspiracy; (2) by failing to consider

various relevant factors and giving too much weight to others; and (3) in Mendez-Perez’s

case, by remaining anchored to an incorrect, higher Guidelines range even after

correcting an earlier calculation mistake. None of these arguments is persuasive.

      First, each defendant’s counsel explicitly stated that the facts outlined in the

presentence reports, as supplemented by the government’s letter of January 30, 2014, in

response to court order, were uncontested (with the exception of the conclusions urged as

to the these defendants’ knowledge of force or coercion as discussed below). These

uncontested facts included the following: (1) hundreds of women were victims of the

overall prostitution scheme; (2) as many as 28 victims worked at the Poughkeepsie

                                            4
brothel during Mendez-Perez’s participation in the conspiracy, and as many as 52 victims

worked at the Newburgh brothel during Mendez-Ramirez’s participation; and (3) “[i]n

many cases, the women involved were victims who were forced to work as prostitutes

against their will in deplorable conditions, whereby they were required to have sex with

customers in 15-minute increments, for up to between 20 and 30 customers per day,”

Presentence Reports ¶ 23. Accordingly, defendants are barred from challenging those

facts on appeal. See Fed. R. Crim. P. 32(i)(3)(A); United States v. Jass, 569 F.3d 47, 66

(2d Cir. 2009).

       As to the factual inferences the district court drew from the above facts, namely,

that defendants must have known that at least some of the victims were being forced or

coerced into prostitution, we identify no clear error in that conclusion. See United

States v. Cavera, 550 F.3d at 190 (“A district court commits procedural error where it . . .

rests its sentence on a clearly erroneous finding of fact.”). The presentence reports and

other uncontested facts indicated (1) that many of the scheme’s prostitutes were

trafficking victims, and (2) that these women regularly rotated among the conspiracy’s

four brothels on a weekly basis. These circumstances admitted a finding that at least

some of the women who worked at the brothels where defendants Mendez-Perez and

Mendez-Ramirez lived and worked were trafficking victims.              The record further

indicated that these defendants worked at the brothels as live-in doormen, cooks, and

money collectors (Mendez-Perez for seven months, and Mendez-Ramirez for

approximately a year) interacting with their co-conspirators, the customers, and the

prostituted women. From the nature of these interactions, the length of defendants’

                                             5
involvement, the number of women involved, the adverse conditions in the brothels, the

fact that the money the women earned was regularly collected by these defendants and

withheld from the women, and the number of customers defendants brought to the

women every day, the district court could certainly make a preponderance finding that

Mendez-Perez and Mendez-Ramirez must have known that at least some of the women

were being forced or coerced into prostitution. See United States v. Gaskin, 364 F.3d

438, 464 (2d Cir. 2004) (“[A] sentencing court, like a jury, may base its factfinding on

circumstantial evidence and on reasonable inferences drawn therefrom.”); see also United

States v. Salim, 549 F.3d 67, 74 (2d Cir. 2008) (“Where there are two permissible views

of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”

(internal quotation marks omitted)); United States v. Reyes, 302 F.3d 48, 54–57 (2d Cir.

2002) (discussing how defendant’s knowledge of conspiracy’s unlawful objectives can be

shown through conscious avoidance of what should be obvious from circumstances).

       Although Mendez-Ramirez also challenges the district court’s reference to the

harm inflicted on the women victimized by the scheme, he failed to raise this objection to

the district court. We therefore review the matter only for plain error, see United States

v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007), a standard that requires

Mendez-Ramirez to show (1) error, (2) that is clear or obvious, (3) affecting substantial

rights, and (4) calling into question the fairness, integrity, or public reputation of judicial

proceedings, see United States v. Marcus, 560 U.S. 258, 262 (2010). We identify no

such error. The district court was entitled to draw reasonable inferences of harm from

the uncontested facts regarding the use of force and coercion, the conditions in which the

                                              6
women worked, and the number of acts of prostitution they were forced to undertake on a

daily basis. See United States v. Gaskin, 364 F.3d at 464.

       Second, we similarly review for plain error defendants’ unpreserved procedural

argument that the district court failed to afford individualized sentencing consideration

and failed to consider the need to avoid unwarranted sentencing similarity among

differently situated co-conspirators. See United States v. Wagner-Dano, 679 F.3d 83,

89 (2d Cir. 2012) (holding alleged failure properly to consider § 3553(a) factors subject

to plain error review where not raised to district court).       Defendants’ sentencing

transcripts reveal that the district court adequately considered the § 3553(a) factors,

including, inter alia, defendants’ individual personal circumstances and roles in the

offense, the relative culpability among the various co-defendants, and the parsimony

principle.    See, e.g., Mendez-Perez Sentencing Tr. 34:5–35:19, 37:20–39:15;

Mendez-Ramirez Sentencing Tr. 15:24–16:20, 20:11–21:21, 24:16–25. This precludes

a finding of plain error. See United States v. Wagner-Dano, 679 F.3d at 89 (“In this

Circuit, we presume that a sentencing judge has faithfully discharged her duty to consider

the statutory factors. We do not require robotic incantations that the district court has

considered each of the § 3553(a) factors.” (internal quotation marks, citations, and

alterations omitted)). Defendants’ arguments that the district court misbalanced those

factors by overemphasizing some and discounting others goes to substantive

unreasonableness and is addressed below. See United States v. Cavera, 550 F.3d at 191;

see also United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008) (“[T]he weight

to be afforded any § 3553(a) factor is a matter firmly committed to the discretion of the

                                            7
sentencing judge and is beyond our review, as long as the sentence ultimately imposed is

reasonable.” (internal quotation marks omitted)).

       Third, the transcript of Mendez-Perez’s sentencing hearing does not support his

contention that the district court remained improperly influenced by an earlier, mistaken

Guidelines calculation even after that calculation was corrected. Rather, after correcting

the Guidelines calculation, the district court properly proceeded to discuss the appropriate

sentencing factors, including the defendant’s characteristics, the nature and severity of

the offense, and the goals and purposes of sentencing, and concluded that an

above-Guidelines sentence was necessary to serve the sentencing objectives of 18 U.S.C.

§ 3553(a). On this record, we are satisfied that the earlier error did not impermissibly

influence the court’s ultimate sentencing determination in Mendez-Perez’s case.

       Accordingly, we identify no procedural unreasonableness in the challenged

sentences.

2.     Substantive Unreasonableness

       A defendant arguing substantive unreasonableness “bears a heavy burden because

our review of a sentence for substantive reasonableness is particularly deferential.”

United States v. Broxmeyer, 699 F.3d at 289.          When reviewing a non-Guidelines

sentence, we “must give due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” Gall v. United States, 552 U.S.

38, 51 (2007). We “do not consider what weight we would ourselves have given a

particular factor. Rather, we consider whether the factor, as explained by the district

court, can bear the weight assigned it under the totality of circumstances in the case.”

                                             8
United States v. Cavera, 550 F.3d at 191 (internal citation omitted). We will set aside a

sentence on substantive grounds “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); see United States v. Jones, 531 F.3d 163, 174 (2d Cir.

2008) (“[D]istrict courts enjoy considerable discretion in identifying the grounds that can

justify a non-Guidelines sentence.”)

       That is not these cases.     The record reveals that the district court carefully

considered the § 3553(a) factors in light of Mendez-Perez and Mendez-Ramirez’s

individual circumstances, including their roles in the conspiracy and their family and

financial backgrounds. The district court also explained that it was varying from the

Guidelines’ recommendation because it thought the Guidelines failed to capture the true

seriousness of defendants’ offense conduct in light of the victimization of the women

serving as prostitutes, the number of women so victimized, the number of acts of

prostitution undertaken on a daily basis, and the length of defendants’ participation in the

scheme. See Kimbrough v. United States, 552 U.S. 85, 109–110 (2007) (describing

district court’s authority to vary from Guidelines recommendation where court concludes

Guidelines do not fully capture § 3553(a) factors in individual case).

       Nor can we conclude that the district court assigned more weight to the

seriousness of defendants’ offense conduct than that factor reasonably can bear. See

United States v. Cavera, 550 F.3d at 191. While these defendants were not leaders of




                                             9
the conspiracy,2 each played an important role in its operation. Mendez-Perez oversaw

the daily operation of the Poughkeepsie brothel for seven months, functioning as a live-in

doorman, money collector, cook, and bodyguard to the women.              Mendez-Ramirez

played a similar role at the Newburgh location for an entire year. Given these roles in

an expansive and long-running scheme that not only involved illegal prostitution but also

victimized the women forced to serve as prostitutes, we cannot conclude that 60-month

sentences are substantively unreasonable.

3.    Error in the Judgment as to Mendez-Perez

      Mendez-Perez contends that there is an error in the written judgment in his case, in

that, instead of the $3,000 order of restitution pronounced at the sentencing hearing, the

written judgment includes an unexplained handwritten modification striking that

restitution order and substituting a $3,000 fine in its place. The government agrees that

this modification is error and consents to correction of the written judgment. See United

States v. Salameh, 261 F.3d 271, 276 (2d Cir. 2001) (“Where an unambiguous oral

sentence conflicts with the written judgment, the constitutional right of a defendant to be

present at sentencing dictates that the oral pronouncement of sentence must control.”

(internal quotation marks omitted)). Accordingly, we remand Mendez-Perez’s case to

the district court for the limited purpose of correcting the written judgment accurately to



2
  The leaders of the conspiracy pleaded guilty to more serious charges and received
sentences of life imprisonment, the challenges to which are not before this panel. See
United States v. Isaias Flores-Mendez, No. 14-2190-cr (2d Cir. filed June 10, 2014);
United States v. Bonifacio Flores-Mendez, No. 14-2191-cr (2d Cir. filed June 12, 2014).


                                            10
reflect that Mendez-Perez’s sentence included a $3,000 order of restitution and not a

$3,000 fine. We affirm Mendez-Perez’s judgment of conviction in all other respects.

4.     Mendez-Ramirez’s Fine

       Mendez-Ramirez also challenges the district court’s imposition of a $3,075 fine

due to an asserted inability to pay in light of the $3,000 mandatory order of restitution.

See 18 U.S.C. § 3572. The district court initially declined to include a fine because

Mendez-Ramirez did not have the ability to pay. After imposing $3,000 in mandatory

restitution, the court then stated its intention specifically to designate for satisfaction of

the restitution order the $3,000 balance of Mendez-Ramirez’s checking account through

an order of forfeiture. Defense counsel objected and represented that those assets were

not traceable to the instant offense and, therefore, not subject to forfeiture. In response,

the district court stated, “It’s very important that that money go to the victim of the crime

and that if there’s a mandatory restitution obligation . . . and there be a way of paying it,

that it goes to the victim,” Mendez-Ramirez Sentencing Tr. 29:19–22, and then sentenced

Mendez-Ramirez to a $3,075 fine. In light of (1) the mismatch between the district

court’s stated intention (to have the money flow to the victim through restitution) and the

sentence it imposed (a fine, which is payable to the government independent of the

restitution order, see generally 18 U.S.C. § 3611); and (2) the court’s statutory obligation

to “impose a fine or other monetary penalty only to the extent that such fine or penalty

will not impair the ability of the defendant to make restitution,” id. § 3572(b), we vacate

the $3,075 fine and remand for the limited purpose of resentencing as to the pecuniary

aspects of the sentence. If the district court truly intended to impose both a $3,000 order

                                             11
of restitution (payable to the victim) and a $3,075 fine (payable to the government), it

should consider whether Mendez-Ramirez has the ability to pay both independent

pecuniary obligations.     We affirm Mendez-Ramirez’s judgment of conviction in all

other respects.

       We have considered defendants’ remaining arguments, and we conclude that they

are without merit.3 Accordingly, Mendez-Perez’s judgment of conviction and sentence

are AFFIRMED, except to the extent we REMAND the judgment for the limited purpose

of effecting the correction indicated in this order, and Mendez-Ramirez’s judgment of

conviction and sentence are AFFIRMED in part and VACATED and REMANDED in

part solely as to the fine as described in this order.

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




3
  Because we affirm the challenged sentences in principal part, we decline to transfer
these cases to a different district judge on remand.

                                               12
