      14-1840(L)
      United States v. Jiamez-Dolores, et al.

 1	                                  UNITED STATES COURT OF APPEALS
 2	                                      FOR THE SECOND CIRCUIT
 3	
 4	                                                August Term, 2015
 5	
 6	                            (Argued: June 2, 2016            Decided: August 3, 2016)
 7	
 8	                           Docket Nos. 14-1840(L), 14-1842(CON)
 9	       ________________________________________________________________________
10	
11	                                             United States of America,
12	
13	                                                    Appellee,
14	
15	                                                        v.
16	
17	   CARLOS GARCIA-DE LA ROSA, AKA Pirulo, AKA Miguel, AKA Choqui, MARIA BAUTISTA-
18	   PENA, AKA Maricruz, MIGUEL ANGEL CHE-VELIZ, AKA Miguelon, ISIDRO DEGANTE-GALENO,
19	   AKA Cachorro, AKA El Perro, AKA Marcos, MARGARITO DEGANTE, AKA Chachalaco, JAVIER
20	   LEON-CHAVEZ, AKA Ricardo, AKA Ricardito, SERGIO DEGANTE-GALENO, AKA Huesito,
21	   MARIO PEDRO MARTINEZ-BARRERA, AKA Mickey Mouse, MARCOS MENDEZ-PEREZ,
22	   ALEJANDRO DEGANTE-GALENO, AKA Celestino Degante Galeno, AKA El Zorro, ALBERTO
23	   JESUS MARTINEZ-MIRANDA, AKA Barbitas, AKA Barbas, AKA FNU LNU, MANUEL GOMEZ-
24	   BATANA, FRANCISCO JAVIER MENDEZ-RAMIREZ, ISAIAS FLORES-MENDEZ, AKA Jesus Diaz,
25	   AKA Adrian Sanchez-Mendez, AKA Sealed Defendant 1, AKA Adrian Sanchez Mendez, AKA
26	   Jesus Diaz-Rincon, AKA Chelo, BONIFACIO FLORES-MENDEZ, AKA Mota, AKA Boni,
27	
28	
29	                                                   Defendants,
30	
31	
32	   VALENTIN JIAMEZ-DOLORES, PEDRO DEGANTE-GALENO, AKA Barbon, AKA Barbas,
33	
34	                                Defendants – Appellants.
35	   ________________________________________________________________________
36	
37	   Before:           HALL, LYNCH, and CHIN, Circuit Judges.
38	
39	           Appeal from a judgment of the United States District Court for the Southern District of
40	   New York (Forrest, J.). Defendants-Appellants Pedro Degante-Galeno and Valentin Jiamez-
41	   Dolores each pleaded guilty to one count of conspiracy, 18 U.S.C. § 371, for their participation
42	   in a sex-trafficking enterprise. Each defendant was sentenced to 60 months’ imprisonment, the
43	   statutory maximum term. On appeal, both defendants challenge the procedural and substantive
44	   reasonableness of their sentences, and Degante-Galeno argues that his guilty plea must be

                                                           1
       
 1	   vacated due to the court reporter’s inability to produce a complete transcript of the change of
 2	   plea proceedings. We write principally to address this latter argument. We AFFIRM the district
 3	   court’s judgment in all respects.
 4	
 5	
 6	                                                                        REBECCA MERMELSTEIN (Amanda Kramer, Margaret
 7	                                                                        Garnett, of counsel), Assistant United States Attorneys, for
 8	                                                                        Preet Bharara, United States Attorney for the Southern
 9	                                                                        District of New York, New York, NY.
10	
11	                                                                        RICHARD B. LIND, New York, NY, for Defendant-Appellant
12	                                                                        Pedro Degante-Galeno.
13	
14	                                                                        STEVEN R. KARTAGENER, New York, NY, for Defendant-
15	                                                                        Appellant Valentin Jiamez-Dolores.
16	
17	
18	   PER CURIAM:
19	
20	                   This criminal case involves the prosecution of a large-scale sex-trafficking enterprise in

21	   the New York City area.1 For several years, Defendants-Appellants Valentin Jiamez-Dolores

22	   and Pedro Degante-Galeno participated in the prostitution ring, which involved four separate

23	   brothels and a delivery service by which women would be driven directly to customers’

24	   residences. Many of the women worked in deplorable conditions and were abused and forced to

25	   participate against their will. These women were required to have sex with up to 20 to 30

26	   customers per day and received as little as $15 per customer.

27	                   Jiamez-Dolores and Degante-Galeno pleaded guilty to conspiring to use facilities in

28	   interstate commerce for the promotion, management, and facilitation of a prostitution trafficking
      																																																																		
                      1
                 The Superseding Indictment charged Defendants-Appellants, along with fifteen other
      conspirators, with offenses related to their participation in the sex-trafficking enterprises.
      Previously, a panel of this Court affirmed the convictions and sentences of six conspirators,
      Alejandro Degante–Galeno, Alberto Jesus Martinez–Miranda, Manuel Gomez–Batana, Isidro
      Degante–Galeno, Marcos Mendez-Perez, and Francisco Javier Mendez-Ramirez. See United
      States v. Degante-Galeno, 609 F. App’x 21 (2d Cir. 2015) (summary order); United States v.
      Mendez-Perez, 607 F. App’x 39 (2d Cir. 2015). In addition, Isaias Flores-Mendez and Bonifacio
      Flores-Mendez pleaded guilty and received sentences of life imprisonment. Their appeals were
      dismissed as barred by their appellate waiver agreements. (See Order, ECF No. 205.) Only
      Valentin Jiamez-Dolores’ and Pedro Degante-Galeno’s claims are before us on this appeal.
                                                                                     2
       
 1	   enterprise, all in violation of 18 U.S.C. § 371. They were each sentenced, inter alia, to 60

 2	   months’ imprisonment, the statutory maximum term. On appeal, both defendants challenge the

 3	   procedural and substantive reasonableness of their sentences and, based on the fact that there is

 4	   only an incomplete transcript of his plea proceedings, Degante-Galeno challenges the validity of

 5	   his guilty plea entered pursuant to Federal Rule of Criminal Procedure 11. For the following

 6	   reasons, we affirm the district court’s judgment in all respects.

 7	                                       Degante-Galeno’s Claims

 8	          Degante-Galeno contends that his guilty plea must be vacated. Both the government and

 9	   the defendant agree that a considerable portion of the transcript of the Rule 11 proceedings is

10	   unavailable despite their diligent efforts to locate it. The partial transcript that was submitted to

11	   this Court begins with the district court’s inquiry with respect to Degante-Galeno’s

12	   understanding of the plea agreement and the factual basis for the charges, which follows the part

13	   of the Rule 11 proceeding that would normally entail detailed questioning concerning Degante-

14	   Galeno’s competency and his knowing waiver of various trial-related constitutional rights.

15	   Degante-Galeno contends that, because the available transcript does not cover the full

16	   proceedings, the record is “silent,” Appellant’s Br. 12, as to whether the district court complied

17	   with several of the Rule 11 requirements, including confirming with the aid of a Spanish

18	   interpreter that he understood the proceedings and the nature of the charges and that he

19	   knowingly and voluntarily waived certain constitutional rights.

20	          Rule 11 is “designed to assist the district judge in making the constitutionally required

21	   determination that a defendant’s guilty plea is truly voluntary.” United States v. Maher, 108

22	   F.3d 1513, 1520 (2d Cir. 1997). This Court has “adopted a standard of strict adherence to Rule

23	   11.” United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 2016) (internal quotation marks



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 1	   omitted). Absent a contemporaneous objection, however, “deviations from Rule 11 will not

 2	   warrant appellate relief when the defendant’s ‘substantial rights’ have not been affected.” Id. In

 3	   order to establish that a Rule 11 violation affected his or her “substantial rights,” the defendant

 4	   must show “that there is ‘a reasonable probability that, but for the error, he would not have

 5	   entered the plea.’” United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005) (quoting United

 6	   States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).

 7	                   Despite having multiple opportunities to frame an objection, including in this appeal,

 8	   Degante-Galeno has not asserted that the district court committed any specific errors during the

 9	   plea colloquy, much less that any error would have “had an effect on his decision to plead

10	   guilty.” United States v. Harrington, 354 F.3d 178, 184 (2d Cir. 2004) (internal quotation marks

11	   omitted). He contends that he is entitled to have his guilty plea vacated based solely on the fact

12	   that the transcript is incomplete, and he asserts that he has been prejudiced because the absence

13	   of a complete transcript makes it impossible for this Court to determine whether he knowingly

14	   and voluntarily pleaded guilty.

15	                   Degante-Galeno’s argument fails for two reasons. First, inexplicably, he has taken no

16	   steps, available to him under Rule 10(c) of the Federal Rules of Appellate Procedure, to

17	   accommodate the fact that the complete transcript is unavailable.2 Had he done so when the

18	   problems with the transcript first came to light, it is highly likely the parties and the district court

19	   would have been able to fill in the material gaps in the record of what transpired at the Rule 11

      																																																																		
                      2
                Fed. R. App. P. 10(c) provides: “If the transcript of a hearing or trial is unavailable, the
      appellant may prepare a statement of the evidence or proceedings from the best available means,
      including the appellant’s recollection. The statement must be served on the appellee, who may
      serve objections or proposed amendments within 14 days after being served. The statement and
      any objections or proposed amendments must then be submitted to the district court for
      settlement and approval. As settled and approved, the statement must be included by the district
      clerk in the record on appeal.”


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 1	   proceedings. Second, “[b]efore we will grant relief based on gaps in the record,” we require the

 2	   appellant “to show specific prejudice to his ability to perfect an appeal.” United States v.

 3	   Weisser, 417 F.3d 336, 342-43 (2d Cir. 2005).              Under the circumstances presented here,

 4	   Degante-Galeno’s general claim of prejudice, much of which is of his own making by failing to

 5	   use the processes available to him under Rule 10(c), is insufficient. Although he is correct that

 6	   prejudice may “exist[] if the record is so deficient that it is impossible for the appellate court to

 7	   determine if the district court has committed reversible error,” id. at 343 (internal quotation

 8	   omitted), we are not hampered by such insufficiencies. Rather, the portion of the transcript that

 9	   is available shows that the district court was able to make specific findings as to the

10	   voluntariness of Degante-Galeno’s plea:

11	                   Since you acknowledge that you are in fact guilty of the charge
12	                   against you in the superseding information, . . . and since I am
13	                   satisfied that you know of your rights, including your right to go
14	                   trial, that you are aware of the consequences that could flow from
15	                   entering a guilty plea, and the sentence that may be imposed, and
16	                   since I find that you are pleading guilty voluntarily, I accept your
17	                   plea.
18	
19	   J. App’x 50.
20	
21	           Degante-Galeno, moreover, does not challenge the validity of these findings. Absent any

22	   specific allegation of deficiency in the proceedings, or proposed reconstruction of the record of

23	   those proceedings indicating a deficiency, and given the district court’s unchallenged factual

24	   findings, we are satisfied that the record (albeit incomplete) is adequate to show that Degante-

25	   Galeno’s guilty plea was knowing and voluntary.3

      																																																																		
                      3
                        		 We further note that during the Rule 11 proceedings for the co-defendants in this case,
      for which complete transcripts are available, the district court methodically and thoroughly
      informed each defendant of his constitutional rights and determined that his guilty plea was
      knowing and voluntary. (See, e.g., Transcripts, ECF Nos. 138, 145, 150, 162, 164, 176, 178, 182,
      192, 213, 215, 217, 219, 235.) In the case before us, the portion of the transcript that is available
      tracks the language of the co-defendants’ guilty plea colloquies, which provides us a further
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 1	                   Next, Degante-Galeno argues that his sentence of 60 months’ imprisonment—above the

 2	   Guidelines range of 33 to 41 months—was procedurally and substantively unreasonable. “A

 3	   sentencing judge has very wide latitude to decide the proper degree of punishment for an

 4	   individual offender and a particular crime.” United States v. Cavera, 550 F.3d 180, 188 (2d Cir.

 5	   2008) (en banc).                            We will “set aside a district court’s substantive determination only in

 6	   exceptional cases where the trial court’s decision ‘cannot be located within the range of

 7	   permissible decisions.’” Id. at 189 (emphasis omitted) (quoting United States v. Rigas, 490 F.3d

 8	   208, 238 (2d Cir. 2007)). “This degree of deference is only warranted, however, once we are

 9	   satisfied that the district court complied with the Sentencing Reform Act’s procedural

10	   requirements.” Id. (emphasis omitted). In this regard, a district court “errs procedurally if it

11	   does not consider the [18 U.S.C.] § 3553(a) factors, or rests its sentence on a clearly erroneous

12	   finding of fact.” Id. at 190.

13	                   Degante-Galeno contends that the district court, in relying on his role as both a driver of

14	   women to customers’ homes and a dispatcher, made a factual assumption that was “unsupported

15	   by the record evidence.” United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010). Unlike the

16	   situation in Dorvee, however, the record in this case supported the district court’s finding that he

17	   was a driver in addition to being a dispatcher. Although during his plea colloquy Degante-

18	   Galeno initially denied serving as a driver, he did not challenge the Probation Officer’s finding,

19	   contained in the Presentence Report (“PSR”), that he “worked as a driver and was responsible for

20	   delivering women working or being forced to work as prostitutes to customers’ residences.”

21	   PSR 10. At sentencing, the district court adopted this factual finding, and Degante-Galeno did



      																																																																																																																																																																																																																				
      indication that the court followed its usual procedures by systematically addressing the Rule 11
      requirements.
                                                                                                              6
       
 1	   not object.4 It was not error, much less plain error, for the district court to base its sentence in

 2	   part on an unchallenged factual finding adopted from the PSR. For similar reasons, we reject

 3	   Degante-Galeno’s argument that the district court “improperly attributed [to him] a more

 4	   significant role than he held,” Appellant’s Br. 16.

 5	                   We conclude that Degante-Galeno’s sentence was substantively reasonable. In addition

 6	   to considering his role in the offense, the district court based the sentence on his complicity in

 7	   the coercion applied to the victims—some of whom were forced into prostitution, the duration of

 8	   his participation in the conspiracy, and his failure to acknowledge fully the seriousness of the

 9	   offense. Although the court’s upward variance was substantial, given the court’s thoughtful

10	   consideration of the § 3553(a) factors, the sentence was not unreasonable or an abuse of

11	   discretion. See United States v. Park, 758 F.3d 193, 199 (2d Cir. 2014).

12	                                                                        Jiamez-Dolores’ Claims

13	                   On appeal, Jiamez-Dolores challenges the procedural and substantive reasonableness of

14	   his sentence of 60 months’ imprisonment. He argues that the district court did not make

15	   sufficient efforts to individualize his sentence based on the § 3553(a) factors and that the

16	   sentence was excessively harsh.5 We conclude that Jiamez-Dolores’ sentence was procedurally

      																																																																		
                      4
               In his reply brief, Degante-Galeno further argues that the district court’s finding that
      “[s]ometimes the women had to arrive in a very short window of time or the customers didn’t
      want them, so the women were really very used in this what I call the mobile brothels,” J. App’x
      150-51, was factually unsupported and thus unreasonable. That finding, however, is consistent
      with the PSR, which states that Degante-Galeno had a conversation with his brother “in which
      they discussed the fact that a customer wanted delivery of a woman working or being forced to
      work as a prostitute, but that the delivery had to be made within the next 10 to 15 minutes.” PSR
      12.
                      5
               At oral argument, Jiamez-Dolores argued that he was unfairly prejudiced by the change
      in the government’s position between its sentencing memorandum, which recommended a
      within-Guidelines sentence, and at sentencing, during which the government recommended “a
      substantial sentence, and not simply just a sentence within the applicable guidelines range.”
      Def’s App’x 40. The government’s recommended sentence was not binding on the district court,
                                                                                     7
       
 1	   reasonable. “[W]e presume that a sentencing judge has faithfully discharged her duty to consider

 2	   the statutory factors.” United States v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (internal

 3	   quotation marks omitted). Based on its assessment of the § 3553(a) factors, the district court

 4	   varied upward from a Guidelines range of 41 to 51 months and sentenced Jiamez-Dolores to 60

 5	   months’ imprisonment—a term which was identical to those imposed on the majority of co-

 6	   defendants. Although Jiamez-Dolores infers from this comparison that the district court failed to

 7	   consider his individual circumstances in imposing sentence, the court stressed at the sentencing

 8	   hearing that it had considered “the particular circumstances relating to each and every

 9	   defendant,” Def’s App’x. 47, including the § 3553(a) factors. Additionally, the district court

10	   recognized that some other defendants with more culpable roles had received the same sentence,

11	   and stated that the uniformity of the sentences was driven by the fact that the government had

12	   accepted guilty pleas from the defendants to single counts for which the statutory maximum was

13	   60 months, explicitly noting that it would have given certain defendants higher sentences absent

14	   that limit.                 In support of its conclusion that a sentence of 60 months’ imprisonment was

15	   “sufficient but not greater than necessary,” Def’s App’x 60, the court explained:

16	                                   This is an individualized sentence for this defendant. It’s an
17	                                   upward variance because of the duration of his conduct, the
18	                                   multiple roles that he played in this particular conspiracy with
19	                                   respect to being a supervisor both of personnel of the women who
20	                                   were in the Yonkers brothel, as well as being involved in the
21	                                   financial and distributive aspects of the prostitution enterprise. The
22	                                   conditions of . . . this brothel and of the brothels involved in the
23	                                   conspiracy were particularly disgusting. The conditions were
24	                                   particularly shameful. Those aspects and what I’ve just said is not
25	                                   adequately reflected in the guidelines in the Court’s view.
26	

      																																																																																																																																																																																																																				
      and the government did not promise at any time that it would recommend a within-Guidelines
      sentence. Cf. United States v. Habbas, 527 F.3d 266, 271 (2d Cir. 2008). In any event, Jiamez-
      Dolores was not harmed by the government’s change in position because the district court
      provided advanced notice that it was considering imposing an upward variance.
                                                                                                              8
       
 1	                  The Court also finds the number of victims is not adequately
 2	                  reflected in the guidelines, as well as the number of times each
 3	                  victim was required to perform services or did perform services
 4	                  over the course of a 24-hour period.
 5	
 6	   Def’s App’x 60. The record reflects the district court’s thorough, individualized consideration of

 7	   the § 3553(a) factors and its justifications for imposing an upward variance in Jiamez-Dolores’s

 8	   case.

 9	           In addition, the sentence was substantively reasonable.          The district court heard

10	   arguments at sentencing that Jiamez-Dolores was a 23-year-old first time offender who became

11	   involved in the prostitution conspiracy in order to escape a life of poverty in Mexico. While

12	   acknowledging the crime was heinous, defense counsel stressed that there was no evidence that

13	   Jiamez-Dolores personally coerced or brutalized women. The court also indicated that it had

14	   considered the Probation Office’s recommended sentence of 41 months, at the bottom of the

15	   Guidelines range, but it noted that the probation officer did not have certain information that was

16	   provided in the government’s sentencing submission. Ultimately, the district court determined

17	   that an upward variance was appropriate. Jiamez-Dolores’ role as supervisor, in particular,

18	   yielded a higher Guidelines range than most of his co-defendants, and it was reasonable for the

19	   district court to consider his level of culpability in the conspiracy.   Based on the factors the

20	   district court relied upon, we cannot say that the sentence “was shockingly high, . . . or otherwise

21	   unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

22	                                              Conclusion

23	           We have considered all of the defendants’ remaining arguments and find them to be

24	   without merit. For these reasons, we AFFIRM the judgment of the district court.




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