     09-0433-cr
     USA v. Plata-Zuniga

 1                         UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                           S U M M A R Y   O R D E R
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
 8   CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
 9   PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
10   32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
11   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
12   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
13   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
14   SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
15
16        At a stated term of the United States Court of Appeals for
17   the Second Circuit, held at the Daniel Patrick Moynihan United
18   States Courthouse, 500 Pearl Street, in the City of New York, on
19   the 17th day of February, two thousand ten.
20
21   Present:
22               JON O. NEWMAN,
23               RALPH K. WINTER,
24               REENA RAGGI,
25                         Circuit Judges.
26
27
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29
30   UNITED STATES OF AMERICA,
31        Appellee,
32
33
34               v.                                      No. 09-0433-cr
35
36
37   JUAN ALEJANDRO PLATA-ZUNIGA,
38        Defendant-Appellant.
39
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41
42
43
44
45   APPEARING FOR APPELLANT:          David J. Goldstein, Goldstein &
46                                     Weinstein, Bronx, New York.
47
48   APPEARING FOR APPELLEE:           Lev L. Dassin, Acting United States
49                                     Attorney for the Southern District
50                                     of New York (Mark D. Lanpher and
51                                     Katherine Polk Failla, Assistant
52                                     United States Attorneys, of
53                                     counsel), New York, New York.
54

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 1        Appeal from the January 30, 2009 judgment of the
 2
 3   United States District Court for the Southern District of New
 4
 5   York (Batts, J.).
 6
 7        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND

 8   DECREED that the order of the district court is AFFIRMED.

 9        Juan Plata-Zuniga appeals from the sentence imposed by Judge

10   Batts following his guilty plea to a charge of illegal reentry

11   into the United States.    8 U.S.C. §§ 1326(a), (b)(2).    We assume

12   the parties’ familiarity with the facts and various proceedings

13   in this court and the district court.

14        We review a district court’s sentence under a “deferential

15   abuse-of-discretion standard.”    See United States v. Cavera, 550

16   F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United

17   States, 552 U.S. 38, 41 (2007)) (internal quotation marks

18   omitted).   We review for procedural or substantive error.

19   Cavera, 550 F.3d at 189.    We find procedural error where a

20   district court “fails to calculate the Guidelines range . . .

21   [,] makes a mistake in its Guidelines calculation, . . . treats

22   the Guidelines as mandatory[,] . . . does not consider the §

23   3553(a) factors, or rests its sentence on a clearly erroneous

24   finding of fact.”   Id. at 190 (internal citations omitted).

25   “[W]hen conducting substantive review, we take into account the

26   totality of the circumstances, giving due deference to the

27   sentencing judge’s exercise of discretion, and bearing in mind

28   the institutional advantages of district courts.”    Id.   “[W]e

29   will not substitute our own judgment for the district court’s on


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 1   the question of what is sufficient to meet the § 3553(a)

 2   considerations in any particular case.”   Id. at 189.

 3        Appellant argues that the district court committed

 4   procedural error by failing to articulate specific reasons for

 5   his sentence, and, in particular, neglecting to enunciate any of

 6   the factors under 18 U.S.C. § 3553(a)’s so-called “parsimony

 7   clause,” see United States v. Habbas, 527 F.3d 266, 274 (2d Cir.

 8   2008).   Although the district court is required to give the

 9   reasons for imposing its chosen sentence, 18 U.S.C. § 3553(c),

10   there is no requirement as to the length or detail of the

11   district court’s explanation.    United States v. Villafuerte, 502

12   F.3d 204, 210 (2d Cir. 2007) (“When the district court imposes a

13   Guidelines sentence, it may not need to offer a lengthy

14   explanation . . . .”); see also Rita v. United States, 551 U.S.

15   338, 356 (2007) (holding that Section 3553(c) does not require a

16   full opinion in every case).    Nor is there a duty upon the

17   district court to discuss each factor of Section 3553(a) with

18   particularity.   United States v. Banks, 464 F.3d 184, 190 (2d

19   Cir. 2006) (“There is no requirement that the court mention the

20   required factors, much less explain how each factor affected the

21   court’s decision.”);   United States v. Fernandez, 443 F.3d 19, 30

22   (2d Cir. 2006) (“[W]e will not conclude that a district judge

23   shirked her obligation to consider the § 3553(a) factors simply

24   because she did not discuss each one individually . . . .”).

25        In the instant case, the district court explained that it

26   “considered the submissions of the parties, the defendant’s


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 1   guilty plea and relevant sections of the advisory sentencing

 2   guidelines, and the sentencing factors set forth in [Section

 3   3553(a)]” to determine that a non-Guideline sentence was not

 4   warranted.    Sent. Tr. at 7.    In addition, the court denied a

 5   downward departure “based on the factors contained in . . .

 6   Section 3553(a).”    Id. at 7-8.    Included in the written

 7   submissions of the parties were repeated references to the

 8   parsimony clause, as well as other sentencing arguments and

 9   considerations for the district court to weigh in its sentencing
10   decision.     Although it omitted a particularized discussion of

11   each relevant sentencing factor, the district court’s sentencing

12   explanation was sufficient to meet the objects of Section

13   3553(c).     Specifically, it:   (i) informed appellant of “the

14   reasons for his sentence,” (ii) allowed this court meaningful

15   review, (iii) enabled the public to understand why appellant

16   received his sentence, and (iv) “guide[d] probation officers and

17   prison officials in developing a program to meet [appellant’s]

18   needs.”    See United States v. Molina, 356 F.3d 269, 277 (2d Cir.

19   2004) (explaining the underlying objectives of § 3553(c)).

20   Accordingly, we find no procedural error.

21        Appellant also argues that the district court’s sentence was

22   substantively unreasonable because it rejected his claims for a

23   downward departure.     In particular, he notes his role as sole-

24   care provider to his 83-year-old mother, who currently resides in

25   the United States and suffers from severe cardiac dysfunction.

26   However, given the facts that appellant has five felony


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 1   convictions, that he did not stay with his wife and child upon

 2   reentry, and that seriously ill relatives are not uncommon among

 3   incarcerated prisoners, we find no unreasonableness in the

 4   sentence, which is at the low end of the Guidelines range.

 5        Last, appellant argues that the district court misunderstood

 6   the applicable legal standards for variance from the Guidelines.

 7   He asserts that the district court erroneously required a basis

 8   for departure to support a non-Guidelines sentence, based on the

 9   district court’s statement at sentencing that “there is no reason

10   to depart from the advisory sentencing guideline range.”     Sent.

11   Tr. at 7.   However, when viewed in the broader context of the

12   sentencing transcript, this excerpt provides no indication that

13   the district court misunderstood the applicable legal standards

14   as to the issuance of a non-Guideline sentence.   The district

15   court’s statement, when read in full, indicates that it found no

16   reason to depart from the Guidelines based on the submissions of

17   the parties, the defendant’s guilty plea, relevant sections of

18   the Guidelines, and the factors set forth in Section 3553(a).

19        For the foregoing reasons, the judgment order of the

20   district court is AFFIRMED.

21

22                                  FOR THE COURT:

23                                  Catherine O’Hagan Wolfe, Clerk

24

25

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