         12-2427-cr
         United States v. Garcia (Jerez-Vasquez)

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of April, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                CHRISTOPHER F. DRONEY,
 8                         Circuit Judges,
 9                ALISON J. NATHAN,
10                         District Judge.*
11
12
13       UNITED STATES OF AMERICA,
14
15                                                    Appellee,
16
17                      v.                                                          12-2427
18
19       JUAN GARCIA, JOSE ELIAS ALMANZAR,
20       AKA CAPTAIN RAYMOND, AKA WILFREDO SANCHEZ,
21       AKA HECTOR CASADO, AKA LUIS MAURA,
22       MANUEL LNU, JOSE GREGORIO JEREZ-TEJADA,
23       GREGORIO LNU, MERCEDES LNU,
24       RICHARD VLADIMIR BAEZ,
25
26                                                    Defendants,
27
28
29

                *
                The Honorable Alison J. Nathan, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1   GUILLERMO JEREZ-VASQUEZ,
 2   AKA GUILLERMO JEREZ-VAZQUEZ,
 3
 4                      Defendant-Appellant.**
 5
 6
 7   FOR APPELLANT:     DAVID GORDON, New York, NY.
 8
 9   FOR APPELLEE:      DAVID I. MILLER, Assistant United States
10                      Attorney (Katherine Polk Failla,
11                      Assistant United States Attorney, on the
12                      brief), for Preet Bharara, United States
13                      Attorney for the Southern District of New
14                      York, New York, NY.
15
16        Appeal from the United States District Court for the
17   Southern District of New York (Forrest, J.).
18
19       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20   AND DECREED that the judgment of the United States District

21   Court for the Southern District of New York is AFFIRMED.

22       Defendant-Appellant Guillermo Jerez-Vasquez (“Jerez-

23   Vasquez”) appeals from a judgment by the United States

24   District Court for the Southern District of New York

25   (Forrest, J.) sentencing him to 46 months’ imprisonment for

26   his role in a tax-refund check fraud scheme and for illegal

27   re-entry.   We assume the parties’ familiarity with the

28   underlying facts, the procedural history, and the issues

29   presented for review.



         **
            The Clerk of Court is directed to amend the caption to
     conform to the listing above.

                                    2
1        We apply a “‘deferential abuse-of-discretion standard’”

2    in reviewing sentences for procedural and substantive

3    unreasonableness.     See United States v. Pope, 554 F.3d 240,

4    244 (2d Cir. 2009) (quoting Gall v. United States, 552 U.S.

5    38, 52 (2007)).     We will find procedural error when, inter

6    alia, a district court fails to consider the factors

7    specified by 18 U.S.C. § 3553(a) or “fails adequately to

8    explain its chosen sentence” –      particularly if the court

9    departs from the Guidelines range.      See United States v.

10   Cavera, 550 F.3d 180, 190 (2d Cir. 2008).      We will set aside

11   a district court’s sentence for substantive unreasonableness

12   “only in exceptional cases where the trial court’s decision

13   ‘cannot be located within the range of permissible

14   decisions.’” See id. at 189 (quoting United States v. Rigas,

15   490 F.3d 208, 238 (2d Cir. 2007)).

16       Here, we find that the district court did not abuse its

17   discretion in imposing a sentence at the bottom end of the

18   Guidelines range of 46-57 months.      Jerez-Vasquez entered the

19   United States illegally to participate in a scheme to submit

20   false tax returns in order to claim tax-refund checks.      This

21   scheme netted nearly $400,000 for Jerez-Vasquez and his co-

22   conspirators.     The district court emphasized three key

23   factors in reaching its 46-month sentence.      First, the court


                                     3
1    expressed its dismay over Jerez-Vasquez’s willingness to re-

2    enter the United States illegally after having been deported

3    in 2006 following receipt of a 24-month sentence for drug

4    trafficking.   Second, the court explained its concern that

5    Jerez-Vasquez was in the process of setting up his own tax-

6    refund fraud scheme at the time he was arrested.     Third, the

7    district court acknowledged Jerez-Vasquez’s cooperation with

8    the Government following his arrest and his substantial

9    assistance with the investigation.

10       On the basis of these facts, consideration of the

11   Section 3553(a) factors and the Government’s Letter

12   submitted pursuant to U.S.S.G. § 5K1.1, the district court

13   believed that the Guidelines under-represented the

14   seriousness of Jerez-Vasquez’s conduct and that a 92-month

15   sentence would have been warranted but for Jerez-Vasquez’s

16   cooperation with the Government.     Accordingly, the court

17   reduced the sentence it would have imposed by half and

18   sentenced Jerez-Vasquez to 46 months’ imprisonment with no

19   period of supervised release (in anticipation of immediate

20   deportation upon release).   We find neither procedural nor

21   substantive unreasonableness implicit in this sentence.       The

22   district court reasonably explained its decision to impose a

23   46-month sentence based on the weight it assigned to each


                                   4
1    relevant factor and its consideration of the totality of the

2    circumstances.     See Cavera, 550 F.3d at 191.

3        In addition, we reject Jerez-Vasquez’s argument that

4    the district court ignored the disparity between his

5    sentence and his co-conspirators’ lesser sentences.       See 18

6    U.S.C. § 3553(a)(6).     Even assuming that the district court

7    was required to consider potential sentencing disparities

8    amongst co-defendants, but see United States v. Frias, 521

9    F.3d 229, 236 (2d Cir. 2008), the district court’s

10   conclusion does not seem unreasonable.     Before leaving the

11   bench, Judge Holwell sentenced two of Jerez-Vasquez’s

12   arguably more culpable co-conspirators to 20 months’ and 36

13   months’ imprisonment, respectively, with terms of supervised

14   release.   Although neither co-conspirator cooperated with

15   the Government, neither was also charged with illegal re-

16   entry after being deported for a drug trafficking

17   conviction.    Jerez-Vasquez was the only participant in the

18   fraud scheme subject to this count, which carries a maximum

19   penalty of 240 months’ imprisonment.     See 8 U.S.C. §

20   1326(b)(2).    In sentencing Jerez-Vasquez, Judge Forrest

21   acknowledged the lesser sentences received by his co-

22   conspirators but did not believe that any disparity was

23   unwarranted.     We agree.


                                     5
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.

3
4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6

7




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