11-245-cr
United States v. Hertular

                               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 30th day of January, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
                    Circuit Judges,
         KENNETH M. KARAS,
                    District Judge.*

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UNITED STATES OF AMERICA,
                   Appellee,
               v.                                                                       No. 11-245-cr

ROBERT HERTULAR,
                                       Defendant-Appellant.
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FOR APPELLANT:                                   Robert Hertular, pro se, Butner, New York.

FOR APPELLEE:                                    Jesse M. Furman, Katherine Polk Failla, Assistant United
                                                 States Attorneys, for Preet Bharara, United States
                                                 Attorney for the Southern District of New York, New
                                                 York, New York.



           *
        The Honorable Kenneth M. Karas, of the United States District Court for the
Southern District of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Naomi Reice Buchwald, Judge).

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

DECREED that the amended judgment entered on January 14, 2011, is AFFIRMED.

       Defendant Robert Hertular appeals pro se from an amended judgment entered after

remand, see United States v. Hertular, 562 F.3d 433 (2d Cir. 2009), which again sentences

him to a total of 400 months’ incarceration on his convictions for drug trafficking and

obstruction of justice.1 Hertular now challenges both the district court’s jurisdiction to enter

any judgment against him and its reimposition of an identical 400-month sentence on

remand. We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

1.     Jurisdiction

       Hertular claims that the district court lacked jurisdiction to impose any judgment in

this case because it had dismissed all pending indictments. The argument is defeated by the

record, which shows that, of the three indictments filed in this case, the district court

dismissed only the original indictment and the first superseding indictment. Because the


       1
         Hertular’s original appellate counsel, Elizabeth Fink, was relieved after notifying the
court that she had been appointed by the district court for the limited purpose of filing the
notice of appeal and that Hertular wished to proceed on appeal pro se. Upon Hertular’s filing
of a pro se brief and his request for appointment of another counsel, the court assigned Julia
Heit, who now advises that she has identified no colorable argument beyond those advanced
by Hertular himself. Accordingly, we address Hertular’s pro se filing on this appeal,
construing it liberally to make the strongest arguments suggested. See Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

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second superseding indictment was not dismissed, the district court had jurisdiction to enter

judgment against Hertular.

2.     Resentencing

       Hertular argues that his 400-month sentence is both procedurally and substantively

unreasonable, a claim we review for abuse of discretion. See United States v. Cavera, 550

F.3d 180, 187 (2d Cir. 2008) (en banc).

       To the extent Hertular reasserts procedural claims raised and addressed by this court

on his initial appeal, they are barred from further review by the law-of-the-case doctrine. See

United States v. Williams, 475 F.3d 468, 475 (2d Cir. 2007). Insofar as Hertular asserts new

procedural error in the district court’s failure to conduct a de novo resentencing on remand,

see Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006) (observing that “resentencing

usually should be de novo when a Court of Appeals reverses one or more convictions and

remands for resentencing” (emphasis and internal quotation marks omitted)), the record

belies this contention.

       Before the district court, both parties agreed that the court was required to conduct a

de novo resentencing. The transcript shows that the district court did just that, even if it did

not itself use the words “de novo” or explicitly state that it had considered the 18 U.S.C.

§ 3553(a) sentencing factors. See United States v. Keller, 539 F.3d 97, 101 (2d Cir. 2008)

(disavowing “formulaic requirements” and “robotic incantations” for discharging court’s

sentencing duties (internal quotation marks omitted)); United States v. Fernandez, 443 F.3d

19, 30 (2d Cir. 2006) (presuming, in absence of contrary record evidence, that sentencing

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judge has faithfully discharged duty to consider statutory factors). The district court

explained that it imposed the same 400-month sentence on remand because (1) the “factual

mosaic” underlying Hertular’s convictions had not changed, and (2) Hertular’s reversed

concurrent one-year sentence for impeding a federal law enforcement officer did not warrant

any change in the concurrent 400-month sentence originally imposed on the upheld drug

convictions. Under these circumstances, we identify no procedural error.

       In asserting substantive unreasonableness, Hertular bears a heavy burden because we

generally accord considerable deference to sentencing judges’ substantive determinations as

to the sentence warranted in a particular case and will set aside such determinations “only

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). This is not such an exceptional case. Hertular’s 400-month sentence is plainly

severe, but below the Sentencing Guidelines recommendation of life imprisonment, which

resulted from Hertular’s extensive drug trafficking and his murderous threats against DEA

agents in Belize. See United States v. Friedberg, 558 F.3d 131, 137 (2d Cir. 2009) (“[I]n 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.” (internal

quotation marks omitted)).

       In urging otherwise, Hertular argues that his sentence is unreasonable when compared

to sentences imposed on defendants convicted of similar crimes. In fact, Hertular’s sentence

is commensurate with sentences imposed on other significant drug traffickers. See, e.g.,

                                             4
United States v. Francisco Gonzalez Uribe, No. 09 CR 723 (LAK) (S.D.N.Y. 2010) (360

months for cocaine trafficking); United States v. George Enrique Herbert, No. 03 CR 211

(SHS) (S.D.N.Y. 2005) (400 months for cocaine trafficking). Where, as here, such

trafficking is accompanied by plots to kill federal agents, we cannot conclude that the

challenged 400-month sentence falls outside the broad range of choices available to the

district judge. See United States v. Cavera, 550 F.3d at 189; United States v. Jones, 531 F.3d

163, 173–74 (2d Cir. 2008).

       Insofar as Hertular concedes that his claim of ineffective assistance of counsel should

be raised pursuant to 28 U.S.C. § 2255, see Massaro v. United States, 538 U.S. 500, 504–05

(2003); United States v. Morris, 350 F.3d 32, 39 (2d Cir. 2003), we do not review the claim

on this appeal, leaving Hertular to pursue a collateral challenge, if he so chooses, through that

more appropriate vehicle.

       We have considered Hertular’s remaining arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

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




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