14-4077-cr
United States v. Cantin-Echevarria



                            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 TO 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
10th day of November, two thousand fifteen.

Present:
            DEBRA ANN LIVINGSTON,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges,
            ANALISA TORRES,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,
                   Appellee,

                 v.                                                14-4077-cr

RAFAEL CANTIN-ECHEVARRIA,
                  Defendant-Appellant.
_____________________________________

For Appellee:                             Edward P. Grogan and Rajit S. Dosanjh, Assistant
                                          United States Attorneys, for Richard S. Hartunian,
                                          United States Attorney for the Northern District of
                                          New York, Syracuse, N.Y. (on submission).

For Defendant-Appellant:                  Lisa Peebles, Federal Public Defender, Paul
                                          Evangelista, AFPD, and Molly Corbett, Research and
                                          Writing Specialist, Albany, N.Y. (on submission).


* The Honorable Analisa Torres, of the United States District Court for the Southern District of
New York, sitting by designation.
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       UPON       DUE     CONSIDERATION              WHEREOF       it   is   hereby    ORDERED,

ADJUDGED, AND DECREED that the sentence imposed by the district court is AFFIRMED.

       Defendant-Appellant Rafael Cantin-Echevarria appeals from a judgment of the United

States District Court for the Northern District of New York (Kahn, J.) sentencing him to seventy

months of imprisonment, after Cantin-Echevarria pleaded guilty to illegal reentry into the United

States in violation of 8 U.S.C. § 1326(a).        On appeal, Cantin-Echevarria challenges that

sentence, arguing that it was both procedurally and substantively unreasonable.       We assume the

parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.

       We review both the procedural and substantive reasonableness of a sentence under a

“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see

also United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (“[A]ppellate courts play

an important but clearly secondary role in the process of determining an appropriate sentence.

We review the work of district courts under a ‘deferential abuse-of-discretion standard.’” (quoting

Gall, 552 U.S. at 41)).

       Cantin-Echevarria argues that the sentence was procedurally unreasonable because the

district court did not consider the factors listed in 18 U.S.C. § 3553(a) and failed to provide a

sufficient explanation for the particular sentence imposed.      Cantin-Echevarria claims that the

calculated advisory range under the United States Sentencing Guidelines, owing to his criminal

history, resulted in a Guidelines sentence that was substantively unreasonable in light of his

underlying offense.

I.     Procedural Reasonableness

       The district court imposes a sentence that is “procedurally unreasonable if [it] ‘fails to

calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing

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

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erroneous facts, or fails adequately to explain the chosen sentence.’” United States v. Aldeen, 792

F.3d 247, 251 (2d Cir. 2015) (emphasis omitted) (quoting United States v. Chu, 714 F.3d 742, 746

(2d Cir. 2013)).     In general, we “take a deferential approach and refrain from imposing any

rigorous requirement of specific articulation by the sentencing judge.”                United States v.

Fleming, 397 F.3d 95, 99 (2d Cir. 2005).

          Cantin-Echevarria challenges the procedural reasonableness of his sentence on the

grounds that the district court failed to consider the factors listed in 18 U.S.C. § 3553(a) and

failed to provide a sufficient rationale for the particular sentence imposed.                   Because

Cantin-Echevarria did not lodge an objection at sentencing, we review for plain error.               The

record shows that the district court did not plainly err in either respect.

          First, the transcript of Cantin-Echevarria’s sentencing reveals that the district court

recognized and considered the nature of Cantin-Echevarria’s violations, his criminal history, the

Guidelines sentencing range, and the need for the specific sentence imposed.           The district court

stated that it had “reviewed everything” and assessed the arguments Cantin-Echevarria had

raised.    A49.    Nevertheless, the district court explained that it could not “ignore [his] criminal

history.” A49. The district court found that his offense level was twenty-one, his criminal

history category was five, and the advisory Guidelines range was seventy to eighty months’

imprisonment.      It then imposed a sentence of seventy months’ incarceration.              Indeed, the

district court specified that it had arrived at the particular sentence by “reviewing and

considering all the information, the pre-sentence report, the submissions by counsel, the

sentencing guidelines, [and] the factors outlined in the law.” A50.           The court explained that it

had imposed a sentence at the “low end” of the Guidelines range because it “ha[d] faith” that

Cantin-Echevarria would “start to live a good life, an honest life,” and would become “a good

part of [his] family again and stay out of trouble.”   A50.    The record thus refutes the claim that

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the court failed properly to consider the relevant § 3553(a) factors. Absent evidence to the

contrary, we will not assume that the district court failed to take into account the relevant

statutory considerations simply because the sentencing judge did not explicitly cite § 3553(a) or

list each of its factors. See United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008).

        Second, the district court’s explanation for its within-Guidelines sentence was not so

deficient as to constitute plain error.   Section 3553(c) requires the sentencing court to state “the

reasons for its imposition of the particular sentence,” 18 U.S.C. § 3553(c), but it does not require

the court to articulate any “specific formulas or incantations,” United States v. Cassesse, 685

F.3d 186, 192 (2d Cir. 2012).        Instead, “the length and detail required of a district court’s

explanation varies according to the circumstances.” Id.       At the sentencing hearing, the district

court explained that it could not “ignore [the defendant’s] criminal history.”             A49.    It

emphasized the potential deterrent effect of the sentence.      Given Cantin-Echevarria’s age, his

family circumstances, and his extensive criminal history, the district court hoped that he would

“stay out of trouble,” and it expressed “faith” that he would not “be back here again . . . when

this [was] behind [him].”     A50.    Although the district court could have more extensively laid

out its reasoning, we conclude that the explanation was sufficient and that Cantin-Echevarria’s

contention to the contrary is without merit.

II.     Substantive Reasonableness

        Last, Cantin-Echevarria also claims that the sentence of seventy months’ imprisonment

was substantively unreasonable because his criminal history resulted in a sentence that was

inconsistent with the offense and, in essence, was based on impermissible double counting.

This Court will “set aside a district court’s substantive determination” as to an appropriate

sentence “only in exceptional cases where the trial court’s decision ‘cannot be located within the

range of permissible decisions.’” Cavera, 550 F.3d at 189 (emphasis omitted) (quoting United

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States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).                “In reviewing for substantive

reasonableness, we consider ‘the totality of the circumstances.’” United States v. Mason, 692

F.3d 178, 181 (2d Cir. 2012) (quoting Gall, 552 U.S. at 51).

       Cantin-Echevarria’s Guidelines offense level for the illegal-reentry offense increased by

sixteen because he had one prior felony conviction that was a “crime of violence”: his conviction

for robbery in the second degree.      Cantin-Echevarria argues that this calculation in essence

double counts his prior offense since it was also taken into account in determining his criminal

history category.     But while considering that criminal history in the reentry context “may be

double counting in a literal sense,” it is nevertheless “legitimate where a single act is relevant to

two dimensions of the Guidelines analysis.” United States v. Campbell, 967 F.2d 20, 25 (2d

Cir. 1992). “It is well-established in this Circuit that a district court does not err when it uses a

prior offense to calculate both the offense level and the criminal history category to determine

the correct Guidelines range in unlawful reentry cases.” United States v. Pereira, 465 F.3d 515,

522 (2d Cir. 2006).      We have noted that “the offense level and criminal history category

‘measure different things.    The offense level represents a judgment as to the wrongfulness of

the particular act.     The criminal history category principally estimates the likelihood of

recidivism.’”   Id. (quoting Campbell, 967 F.2d at 24).      Regardless, in this case, the sentence

the district court imposed was reasonable in light of Cantin-Echevarria’s extensive criminal

history, which included eight felony convictions. To that end, the within-Guidelines sentence

that the district court imposed did not go beyond the “range of permissible decisions.” Cavera,

550 F.3d at 189.

       Cantin-Echevarria also briefly argues that the sixteen-level Guidelines enhancement

provision merits “less deference” because the United States Sentencing Commission

promulgated it without reference to empirical data.       But that contention is inapposite.     We

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have “never held that the lack of empirical evidence underlying a particular guideline

automatically renders unreasonable a sentence within or outside of the guideline.” United

States v. Rijo, 467 F. App’x 24, 25-26 (2d Cir. 2012) (summary order); see United States v.

Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (noting that “the absence of empirical support [was]

not the relevant flaw we identified in Dorvee” and finding that appellant’s challenge to U.S.S.G.

§ 2L1.2 on the same grounds was without merit).     Accordingly, the district court did not err in

imposing a sentence based on that Guidelines enhancement.

III.   Conclusion

       We have considered Cantin-Echevarria’s remaining arguments and find them to be

without merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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