17-3162-cr
United States v. Escobosa

                             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
18th day of October, two thousand nineteen.

Present:
            PIERRE N. LEVAL,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                   Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                 v.                                                17-3162-cr

LUIS ESCOBOSA,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                   ROLAND R. ACEVEDO, Law Office of Roland R.
                                           Acevedo, New York, NY

For Appellee:                              KEVIN TROWEL, Assistant United       States Attorney
                                           (Samuel P. Nitze and Tanya Hajjar,   Assistant United
                                           States Attorneys, on the brief),     for Richard P.
                                           Donoghue, United States Attorney      for the Eastern
                                           District of New York, Brooklyn, NY




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          Appeal from a judgment of the United States District Court for the Eastern District of

New York (Kuntz, J.).

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

DECREED that the judgment of the district court is AFFIRMED IN PART, VACATED IN

PART, and REMANDED.

          Luis Escobosa appeals from a September 27, 2017 judgment imposing a sentence of

eighty-seven months’ imprisonment and five years of supervised release.            Escobosa pleaded

guilty to one count of possession of child pornography.         He now challenges the reasonableness

of the sentence, the imposition of three conditions of supervised release, and the effectiveness of

his sentencing counsel.     We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

                                         *       *          *

  I.      Reasonableness of the Sentence

          “We review the [sentencing] work of district courts under a ‘deferential

abuse-of-discretion standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).       “This form of appellate scrutiny

encompasses two components: procedural review and substantive review.” Id.               As relevant

here, “[a] district court commits procedural error where it . . . makes a mistake in its Guidelines

calculation, or . . . rests its sentence on a clearly erroneous finding of fact.” Id. at 190. As to

the second component, “[w]e will . . . set aside a district court’s substantive determination only

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

permissible decisions.’”    Id. at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.

2007)).


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         Escobosa’s claim of procedural unreasonableness is predicated on two statements in the

Presentence Investigation Report (“PSR”) that he asserts were adopted as factual findings by the

district court: (1) that Escobosa failed to report that his stepfather had a child pornography

conviction; and (2) that Escobosa told another offender “during a group therapy session that he

created a website that allows individuals to access child pornography for a fee; and that he can

bypass the monitoring software placed by Pretrial Services on [his] monitored computer.”             A.

294.1

         Escobosa concedes that any challenge to the first of these two facts is reviewed for plain

error because he did not object to it below.     “For plain error, we must find (1) error, (2) that is

plain, and (3) that affects substantial rights; if these three conditions are met, we have discretion

to notice the forfeited error only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Dorvee, 616 F.3d 174, 180 n.2 (2d Cir.

2010).    Even if the district court found that Escobosa failed to report his stepfather’s conviction,

such a finding was not clearly erroneous. Escobosa concedes that he did not tell the court at his

bail hearing or Pretrial Services at any of their meetings about his stepfather’s conviction. He

merely discounts the importance of this omission, noting that he apprised a Special Agent of the

Federal Bureau of Investigation (“FBI”) of his stepfather’s conviction during the FBI

investigation leading to his conviction and so was not attempting to conceal the information.

Yet even if Escobosa had raised this argument below, the district court would not have been

required to draw the inference Escobosa now proffers. See United States v. Krcic, 186 F.3d

178, 181 (2d Cir. 1999) (noting that inferences, if supported by evidence, usually will not

1
  The government argues that the district court never affirmatively adopted these statements in the PSR
as factual findings. For the reasons stated herein, we need not resolve this question but will assume,
arguendo, that the district court made the factual findings relied upon by Escobosa.


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amount to clearly erroneous fact finding).          In such circumstances, Escobosa has not

demonstrated plain error.

       As to the second set of facts, assuming the district court made a factual finding as to

statements made by Escobosa in therapy, it did not rely on those statements at sentencing. See

United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (where “the record indicates clearly that the

district court would have imposed the same sentence in any event, the error may be deemed

harmless” (quotation marks omitted)). The district court only mentioned the statements made

in therapy once in its thorough statement of reasons, as part of a summary of a memorandum

prepared by Pretrial Services.    The court’s primary focus when discussing the need for the

sentence imposed on Escobosa was his violation of bail conditions—conduct that Escobosa does

not deny and which is independent of his statements in therapy. Thus, based on the record

considered as a whole, any error in considering the allegations regarding Escobosa’s statements

was harmless.

       Escobosa also contends that the district court incorrectly treated his sentencing range

under the U.S. Sentencing Guidelines, U.S.S.G. §§ 2G2.2 and 3E1.1, (his “Guidelines range”) as

78 to 87 months’ imprisonment. We disagree.          Again, based on the record considered as a

whole, the district court’s stray reference to that range was a misstatement, not an actual error.

Indeed, the district court repeatedly referred to the correct range throughout the hearing. There

is no merit to Escobosa’s assertion that the district court was under a misimpression as to the

Guidelines range.

       We also reject Escobosa’s substantive unreasonableness claim.        The district court did

not make the same mistakes highlighted in Dorvee or United States v. Jenkins, 854 F.3d 181, 191

(2d Cir. 2017).   The district court did not suggest that Escobosa was likely to sexually assault a


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child, it specifically explained why a substantial sentence was appropriate, and it applied each of

the factors under 18 U.S.C. § 3553(a) without reference to the statutory maximum. The district

court also explained that a higher sentence based on Escobosa’s “disregard for the law” was

warranted given his failure to comply with his bail conditions, A. 533, and that his conduct was

not less culpable than other similarly situated defendants. Moreover, the district court issued a

Guidelines sentence, albeit at the top of the Guidelines range. While “we do not presume that

such sentences are reasonable,” Dorvee, 616 F.3d at 183, “[w]e recognize that in the

overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad

range of sentences that would be reasonable in the particular circumstances,” United States v.

Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).      Indeed, we have upheld numerous sentences that

are comparable to Escobosa’s for similar conduct. See, e.g., United States v. Chow, 441 F.

App’x 44, 46 (2d Cir. 2011) (upholding 84-month sentence for attempted receipt and possession

of child pornography); United States v. Ryan, 406 F. App’x 565, 566–68 (2d Cir. 2011) (90

months for transportation of child pornography).       Thus, Escobosa’s sentence does not fall

outside “the range of permissible decisions.” Rigas, 490 F.3d at 238 (quotation marks omitted).

 II.   Supervised Release Conditions

       Escobosa next challenges Special Conditions 4 (“The defendant will not associate with

any child(ren) under the age of 18, unless a responsible adult is present and he has prior approval

from the Probation Department.”), 5 (“If the defendant cohabits with an individual who has

minor children, the defendant will inform that other party of his prior criminal history concerning

his sex offense. Moreover, he will notify the party of [Condition 4].”), and 8 (“The defendant

shall notify his employer of his offense, if the job employs minors or requires access to the

Internet.”). S.A. 5. The government concedes that Escobosa never received notice of the


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challenged conditions and that the district court failed to provide an explanation of why these

conditions are reasonably necessary. See United States v. Bleau, 930 F.3d 35, 42–43 (2d Cir.

2019); United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018).     Accordingly, we vacate and

remand these conditions for reconsideration with instructions that the district court either

eliminate these conditions or provide a statement of reasons as to the challenged conditions.

III.    Ineffective Assistance of Counsel

        Finally, Escobosa argues that counsel during his bail revocation and sentencing was

ineffective. “[I]n most cases a motion brought under § 2255 is preferable to direct appeal for

deciding claims of ineffective assistance” because the record was “not developed precisely for

the object of litigating or preserving the claim and thus [is] often incomplete or inadequate for

this purpose.” Massaro v. United States, 538 U.S. 500, 504–05 (2003).       The record lacks “any

comment from [Escobosa’s] attorney,” indicating that it is “unwise to consider an ineffective

assistance claim on direct review,” United States v. Vilar, 729 F.3d 62, 98 (2d Cir. 2013), and we

see no reason to depart from the general rule that “the assertedly ineffective attorney” should be

afforded “an opportunity to be heard and to present evidence,” Sparman v. Edwards, 154 F.3d

51, 52 (2d Cir. 1998) (per curiam); see also United States v. Williams, 205 F.3d 23, 35–36 (2d

Cir. 2000). Accordingly, we dismiss Escobosa’s ineffective assistance of counsel claim without

prejudice to renewal in a petition pursuant to 28 U.S.C. § 2255.

        We have considered Escobosa’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM IN PART, VACATE IN PART, and REMAND the judgment of

the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk



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