17-2211-cr
United States v. Balbuena-Carreon

                              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
25th day of May, two thousand eighteen.

Present:        ROSEMARY S. POOLER,
                RICHARD C. WESLEY,
                RAYMOND J. LOHIER, JR.,
                           Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                    Appellee,

                         v.                                                     17-2211-cr

MIGUEL JOSE BALBUENA-CARREON,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:            Philip L. Weinstein, Federal Defenders of New York, Inc., New
                                    York, N.Y.

Appearing for Appellee:             Adam Hobson, Assistant United States Attorney (Margaret
                                    Graham, Assistant United States Attorney, on the brief), for
                                    Geoffrey S. Berman, United States Attorney for the Southern
                                    District of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Kaplan, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Miguel Jose Balbuena-Carreon appeals from the July 17, 2017 judgment of
the United States District Court for the Southern District of New York (Kaplan, J.), sentencing
him principally to 24 months’ imprisonment. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

        In May 2017, Balbuena-Carreon pled guilty to illegal reentry after removal in violation of
8 U.S.C. § 1326. The government and probation department calculated an anticipated Guidelines
sentence of 8 to 14 months. Before sentencing, however, Balbuena-Carreon submitted a letter to
the district court in which he admitted to having been present in the United States since 2006.
This admission altered the Guidelines sentence for Balbuena-Carreon, because his 1996 narcotics
conviction (for which he finished serving his term of confinement in 2000) was now within 15
years of the instant offense (i.e., illegal reentry). The addition of this past conviction to the
Guidelines calculation now gave Balbuena-Carreon a Guidelines sentence of 41 to 51 months’
imprisonment. The district court granted a significant downward variance and sentenced
Balbuena-Carreon to 24 months’ imprisonment, followed by one year of supervised release.

        Balbuena-Carreon now appeals the sentence imposed by the district court, arguing that
the district court procedurally erred in failing to award him an additional one-point reduction for
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b) (2016).

        “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.” United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (internal citations
omitted). When a procedural error in sentencing is not objected to before the district court we
review only for plain error. United States v. Aldeen, 792 F.3d 247, 253 (2d Cir. 2015). Plain error
regarding procedural unreasonableness requires a finding that:

       (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable
       dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case
       means it affected the outcome of the district court proceedings; and (4) the error seriously
       affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Stevenson, 834 F.3d 80, 83 (2d Cir. 2016) (quoting United States v. Marcus, 560
U.S. 258, 262 (2010)).

       The Guidelines provide for a two-point decrease for acceptance of responsibility, per
U.S.S.G. § 3E1.1(a). Section 3E1.1(b) provides for an additional one-point decrease when the
offense level is 16 or greater:

       [U]pon motion of the government stating that the defendant has assisted authorities in the
       investigation or prosecution of his own misconduct by timely notifying authorities of his
       intention to enter a plea of guilty, thereby permitting the government to avoid preparing



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       for trial and permitting the government and the court to allocate their resources efficiently
       ....

        It is well-established law in this Circuit that “a government motion is a necessary
prerequisite to the granting of the third point.” United States v. Lee, 653 F.3d 170, 173 (2d Cir.
2011) (internal quotation marks omitted) (collecting cases). It is uncontested that the government
did not file the required motion. We have acknowledged, however, two circumstances in which a
sentencing court may grant the additional point reduction in the absence of a government motion:
“(1) where the government’s refusal to move is based on an unconstitutional motive, or (2)
where a plea agreement leaves the decision to move to the government’s discretion and the
government acts in bad faith.” Id. Neither exception is relevant in this case. There was no plea
agreement, and Balbuena-Carreon does not argue there was an unconstitutional motive in the
government’s failure to move for the reduction. Accordingly, there was no error.

       We have considered the remainder of Balbuena-Carreon’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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