10-645-cr
United States v. Urena
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                AMENDED 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 14th day of April, two thousand eleven.

PRESENT: GUIDO CALABRESI,
         REENA RAGGI,
                  Circuit Judges,
         JOHN GLEESON,
                  District Judge.*

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UNITED STATES OF AMERICA,
                                          Appellee,

                         v.                                             No. 10-645-cr

MIGUEL URENA,
                                          Defendant-Appellant.
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APPEARING FOR APPELLANT:                          IAN M. CHRISTY (Michael S. Schachter,
                                                  Meghan E. Silhan, on the brief), Willkie Farr &
                                                  Gallagher LLP, New York, New York.

APPEARING FOR APPELLEE:                           JUSTIN ANDERSON (Daniel A. Braun, on the
                                                  brief), Assistant United States Attorneys, for Preet

          *
         District Judge John Gleeson of the United States District Court for the Eastern
District of New York, sitting by designation.
                                          Bharara, United States Attorney for the Southern
                                          District of New York, New York, New York.

       Appeal from the United States District Court for the Southern District of New York

(Jed S. Rakoff, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on February 9, 2010, is AFFIRMED.

       Defendant Miguel Urena stands convicted on a guilty plea of failure to appear in 1994

in the United States District Court for the Southern District of New York as required by

release conditions in connection with crack cocaine trafficking charges punishable by 15

years’ or more imprisonment. See 18 U.S.C. § 3146(a)(1), (b)(1)(A)(i).1 On appeal, Urena

challenges the reasonableness of his 60-month prison sentence – a variance from the

applicable 18-to-24-month Guidelines range – on both procedural and substantive grounds.2

See United States v. Canova, 485 F.3d 674, 679 (2d Cir. 2007). We have analogized

reasonableness review to that for abuse of discretion. See United States v. Cavera, 550 F.3d

180, 187-89 (2d Cir. 2008) (en banc). Applying that standard here, we assume familiarity


       1
          Urena remained a fugitive for more than a decade, during which time his New York
drug confederates were all convicted, but the physical evidence against Urena was thereafter
lost in the September 11, 2001 destruction of the World Trade Center. As a consequence,
in 2010 the 1994 drug charges against Urena were dismissed on the government’s nolle
prosequi application. In the interim, Urena joined a different crack cocaine trafficking
conspiracy in Massachusetts. Convicted for that conduct, Urena was sentenced in the
District of Massachusetts to a 151-month prison term.
       2
       The district court ordered Urena’s 60-month sentence to run consecutively to the
151-month term imposed in the District of Massachusetts.

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with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1.     Procedural Error

       Urena submits that the district court committed procedural error when it considered

the 1994 drug charges in sentencing him for bail jumping. See United States v. Taylor, 487

U.S. 326, 338 n.9 (1988) (observing, in case in which original charges were dismissed under

Speedy Trial Act after defendant failed to appear, that it would have been “highly improper”

to aggravate defendant’s sentence for bail jumping “on the basis of the Court’s untested and

unsubstantiated assumption of what the facts might have been shown to be with regard to”

the original charges). As factual support, Urena points to the district court’s sentencing

observation that flight had allowed Urena to “alter the risk of conviction and a very heavy

sentence on the underlying offense and transmute it to the risk of conviction on an offense

that carried a considerably lesser maximum penalty.” Sentencing Tr. at 17-18. This

statement, which references only the reduced risk achieved by Urena’s flight, not any

assumption about his underlying guilt, does not manifest Taylor error.3

       In fact, the sentencing record demonstrates that when defense counsel voiced concern

that the district court might enhance Urena’s sentence based upon an assumption that he was

guilty of the underlying drug trafficking charges, the district court explicitly rejected the

suggestion: “Someone who has never been convicted of a charge is presumed innocent as

       3
         Because we identify no Taylor error in Urena’s sentence, we need not here resolve
the parties’ dispute as to whether that decision applies outside the Speedy Trial Act context.

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to those charges, so the underlying charges are neither here nor there.” Sentencing Tr. at 8;

see also id. at 13 (reiterating assumption that Urena was innocent of underlying charges).

On this record, we identify no basis to conclude that the challenged sentence was in any way

informed by an “untested and unsubstantiated assumption” of Urena’s guilt on the 1994

charges. United States v. Taylor, 487 U.S. at 338 n.9. Accordingly, we reject Urena’s

procedural challenge as without merit.

2.     Substantive Unreasonableness

       In arguing that a non-Guidelines sentence was substantively unreasonable, Urena

mistakenly relies – at least initially – on 18 U.S.C. § 3553(b)(1) (generally requiring

imposition of Guidelines sentences), a statutory provision expressly severed and excised by

the Supreme Court in United States v. Booker, 543 U.S. 220, 259 (2005), to avoid

invalidation of the Sentencing Reform Act in its entirety. He also relies on cases predating

the Supreme Court’s clarifications in Gall v. United States, 552 U.S. 38 (2007), Kimbrough

v. United States, 552 U.S. 85 (2007), and Rita v. United States, 551 U.S. 338 (2007), of

district courts’ broad discretion to impose non-Guidelines sentences after Booker. As we

have observed, Gall, Kimbrough, and Rita required some modification of our court’s post-

Booker sentencing jurisprudence. See United States v. Cavera, 550 F.3d at 188; see also

United States v. Jones, 531 F.3d 163, 181 (2d Cir. 2008) (noting that, prior to Kimbrough and

Gall, this court had misapprehended scope of district court’s discretion to reject Guidelines

sentencing policies).


                                             4
       In Gall, the Supreme Court explained that while a district court is statutorily obligated

to give the Guidelines fair consideration, it “may not presume that the Guidelines range is

reasonable” and must itself make an “individualized assessment” of the sentence warranted

under 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S. at 50; see Kimbrough v. United

States, 552 U.S. at 101; accord United States v. Cavera, 550 F.3d at 187-88; United States

v. Jones, 531 F.3d at 170. Moreover, while a reviewing court may expect a major variance

from the Guidelines to be supported with “a more significant justification than a minor one,”

Gall v. United States, 552 U.S. at 50, it cannot presume the unreasonableness of a non-

Guidelines sentence, see Rita v. United States, 551 U.S. at 354-55, or demand

“extraordinary” circumstances to justify such a sentence, Gall v. United States, 552 U.S. at

47; see also Kimbrough v. United States, 552 U.S. at 113 (Scalia, J., concurring) (observing

that Sixth Amendment prohibits appellate courts from applying rules or standards of review

that effectively place “thumb on the scales” in favor of Guidelines sentences); United States

v. Verkhoglyad, 516 F.3d 122, 136 (2d Cir. 2008) (holding that explanation for non-

Guidelines sentence need not be “extensive or detailed”). Consistent with these principles,

our court has stated that, on substantive reasonableness review, we will not set aside a district

court’s determination as to the appropriate sentence except in “exceptional cases where the

trial court’s decision cannot be located within the range of permissible decisions.” United

States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted); United States v. Jones,

531 F.3d at 174 (observing that in “great majority of cases, a range of sentences – frequently


                                               5
extending well beyond the narrow ranges prescribed by the Guidelines – must be considered

reasonable”). This is not such an exceptional case.

       In imposing the challenged sentence, the experienced district judge stated that, in “14

years on the bench,” he had not encountered “a more egregious case of bail jumping than in

the case of this defendant.” Sentencing Tr. at 17. The court explained as follows:

              Facing very heavy time, clothed with the presumption of
              innocence, clothed with all of the innumerable procedural
              protections that this country affords criminal defendants, he
              chose instead to flee and to, in effect, as I mentioned before, by
              the flight and by the length of his absence, alter the risk of
              conviction and a very heavy sentence on the underlying offense
              and transmute it to the risk of conviction on an offense that
              carried a considerably lesser maximum penalty. And any doubt
              about his bad faith and his desire to permanently escape justice
              altogether, while committing new crimes, is contradicted by the
              burning of his fingerprints [to avoid detection] and the
              commission of the Massachusetts drug conspiracy. The
              combination, in this Court’s view, is devastating proof of just
              how fully this defendant intended to flout the laws of the United
              States and make a mockery of the constitutional right to bail that
              he had the benefit of.

Id. at 17-18. This is more than sufficient to allow us to conclude that the challenged sentence

fell within the broad range that must be considered substantively reasonable.4 Accordingly,

we reject Urena’s substantive challenge as without merit.


       4
          To the extent Urena initially faulted the district court for failing to provide any
written reasons for the challenged sentence as required by 18 U.S.C. § 3553(c)(2), he appears
to have abandoned this argument in light of the government’s response that the reasons were
filed separately from the public judgment and under seal. Because these reasons incorporate
the district court’s oral comments at sentencing, which we find adequate to demonstrate the
substantive reasonableness of the challenged sentence, we need not discuss this point further.

                                              6
3.    Conclusion

      We have considered Urena’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of conviction.

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




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