14-473-cr(L)
United States v. Paulino & Wated


                                   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.

       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 26th day of August, two thousand fifteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 RICHARD C. WESLEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                               v.                                        Nos. 14-473-cr(L)
                                                                              14-854-cr(Con)
CAYETANO PAULINO, FELIPE WATED,
                                 Defendants-Appellants.*
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FOR APPELLANTS:                                  B. Alan Seidler, Esq., New York, New York,
                                                 for Cayetano Paulino.

                                                 Neil B. Checkman, Esq., Georgia J. Hinde,
                                                 Esq., New York, New York, for Felipe Wated.




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

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FOR APPELLEE:                           Russell Capone, Brian A. Jacobs, Assistant
                                        United States Attorneys, for Preet Bharara,
                                        United States Attorney for the Southern District
                                        of New York, New York, New York.

      Appeals from judgments of the United States District Court for the Southern

District of New York (Denise L. Cote, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments entered on January 28, 2014, (as to Paulino) and

March 17, 2014, (as to Wated) are AFFIRMED.

      Defendant Cayetano Paulino stands convicted after a guilty plea of conspiracy to

engage in the unlawful wholesale distribution of prescription drugs and conspiracy to

distribute and possess with intent to distribute a controlled substance. See 18 U.S.C.

§ 371; 21 U.S.C. § 846. Paulino argues on appeal that (1) he received ineffective

assistance of counsel in connection with his plea and sentencing; and (2) his

within-Guidelines sentence of 78 months’ imprisonment is procedurally unreasonable

because the district court erred in applying an enhancement for obstruction of justice.

Defendant Felipe Wated stands convicted after a guilty plea of bank fraud; conspiracy to

commit money laundering; and conspiracy to commit mail fraud, wire fraud, and health

care fraud.    See 18 U.S.C. §§ 1344, 1349, 1956.          Sentenced principally to a

below-Guidelines term of 60 months’ imprisonment, Wated challenges his sentence as

procedurally and substantively unreasonable in light of his cooperation with the

government’s investigation. We assume the parties’ familiarity with the facts and the




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record of prior proceedings, which we reference only as necessary to explain our decision

to affirm in both cases.

1.     Paulino’s Claims of Ineffective Assistance of Counsel

       Paulino contends that he was denied effective assistance of counsel at plea and

sentencing because, in pleading guilty, he relied on counsel’s representation that she

would seek “safety valve” consideration for him at sentencing, see U.S.S.G.

§§ 2D1.1(b)(17), 5C1.2, which she failed to do. He further faults counsel for failing to

oppose an obstruction of justice enhancement at sentencing. We generally will not hear

ineffective assistance claims on direct appeal because the record frequently requires

further development, a matter better suited to a collateral challenge pursuant to 28 U.S.C.

§ 2255. See Massaro v. United States, 538 U.S. 500, 504–05 (2003); cf. United States

v. Kimber, 777 F.3d 553, 562 (2d Cir. 2015) (addressing ineffective assistance claim on

direct appeal where record admits resolution “beyond any doubt” (internal quotation

marks omitted)).

       The record here strongly indicates that counsel’s decision not to pursue safety

valve consideration was a strategic choice discussed with Paulino.           See Paulino

Sentencing Tr. 11–12 (statement by counsel that she had discussed with Paulino

possibility that government would use information learned in safety valve proffer to

“increase his [G]uidelines exposure,” and “we decided . . . that he would not avail

himself of the safety valve”); id. at 13 (district court commending counsel for doing

“careful analysis that is appropriate in making that decision”).       The record further

indicates that counsel did oppose an obstruction of justice enhancement in her written

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sentencing submission to the district court. See Sentencing Submission 3 n.2, United

States v. Cayetano, No. 11-CR-1072 (S.D.N.Y. Jan. 28, 2014), ECF No. 820. Counsel

on appeal makes no mention of the latter fact but conclusorily disputes the accuracy of

trial counsel’s representations regarding safety valve relief. This is hardly a convincing

showing of ineffectiveness. See Strickland v. Washington, 466 U.S. 668, 689 (1984)

(requiring court to indulge “strong presumption” that counsel’s challenged conduct “falls

within the wide range of reasonable professional assistance” and placing burden on

defendant to overcome presumption that challenged action might be considered sound

strategy); accord Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Jackson v. Conway,

763 F.3d 115, 152–53 (2d Cir. 2014).        Nevertheless, because the matter may well

require further submissions from Paulino, trial counsel, and prosecutors, we cannot

resolve the matter “beyond any doubt.” United States v. Kimber, 777 F.3d at 562

(internal quotation marks omitted). We, therefore, decline to hear Paulino’s ineffective

assistance claim on direct appeal, leaving him to pursue it, if he chooses, in a § 2255

petition.

2.     Reasonableness of Sentences

       We review a challenged sentence for “‘reasonableness,’ ‘a particularly deferential

form of abuse-of-discretion review’ that we apply both to the procedures used to arrive at

the sentence (procedural reasonableness) and to the length of the sentence (substantive

reasonableness).”   United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)

(quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc)).



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       a.     Paulino’s Sentence

       Paulino argues that his sentence is procedurally unreasonable because the district

court erroneously applied an obstruction of justice enhancement to his Guidelines

calculation, see U.S.S.G. § 3C1.1, without making the necessary factual finding that

Paulino had fled the jurisdiction with the specific intent to avoid sentencing. See United

States v. Cavera, 550 F.3d at 190 (identifying Guidelines miscalculation as procedural

error). The argument is factually inaccurate and merits little discussion. In applying

the challenged enhancement, the district court observed that it was “inherently

obstructive of the administration of justice” for Paulino to have “intentionally cut off his

ankle bracelets, got[ten] on a bus, got[ten] on a plane and fled [the] country after his plea

of guilty, knowing he had to appear here in court for sentence.” Paulino Sentencing Tr.

16.   While the district court thought the obstruction conclusion applied in these

circumstances without regard to “specific purpose,” it further stated, “[i]f I were required

to find a purpose beyond that, I would find that the purpose was to avoid being sentenced

. . . .” Id. On this record, we easily conclude that the obstruction enhancement was

correctly applied, see, e.g., United States v. Carty, 264 F.3d 191, 194–95 (2d Cir. 2001),

and that Paulino’s procedural challenge is meritless.

       b.     Wated’s Sentence

       Wated challenges his sentence as both procedurally and substantively

unreasonable. He contends that the district court committed procedural error: (a) by

failing to consider § 5K1.1(a) factors governing the sentencing of cooperating defendants

and failing to give due weight to his assistance; (b) by concluding that Wated had a

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history of cooperation in prior cases, without making formal factual findings and without

sufficient support in the record; and (c) by sentencing Wated on the basis of an

unauthorized consideration, namely, the need to deter criminal conduct by repeat

cooperators.    He also contends that a sentence of 60 months’ incarceration is

substantively unreasonable in light of his substantial assistance to the government.

       Because Wated did not raise any of his procedural objections to the district court,

we review only for plain error, see United States v. Villafuerte, 502 F.3d 204, 207 (2d

Cir. 2007), a standard that requires him to show (1) error, (2) that is clear or obvious,

(3) affecting substantial rights, and (4) calling into question the fairness, integrity, or

public reputation of judicial proceedings, see United States v. Marcus, 560 U.S. 258, 262

(2010). We identify no procedural error—much less plain error—in this case.

       First, counsel for Wated and the government discussed the § 5K1.1(a) factors at

length both in their submissions to the court and at the sentencing hearing. Absent some

indication to the contrary, “we presume that a sentencing judge has faithfully discharged

her duty to consider the statutory factors. We do not require robotic incantations that

the district court has considered each of the [relevant] factors.”       United States v.

Wagner-Dano, 679 F.3d 83, 89 (2d Cir. 2012) (internal quotation marks, citations, and

alterations omitted).    Given the discussion immediately preceding imposition of

sentence, we have no reason to conclude that the district court failed to consider the

appropriate factors. Further, Wated’s argument that the district court gave too little

weight to the extent of his assistance when balancing the § 5K1.1 and § 3553(a) factors is

not cognizable on appeal. See United States v. Cavera, 550 F.3d at 191; United States

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v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008) (“[T]he weight to be afforded any

[relevant] factor is a matter firmly committed to the discretion of the sentencing judge

and is beyond our review, as long as the sentence ultimately imposed is reasonable.”

(internal quotation marks omitted)).

      Second, Wated is foreclosed from challenging the district court’s adoption of the

presentence report’s observation that he provided assistance to the government in

connection with his prior convictions, as counsel specifically conceded that fact at the

hearing. See Wated Sentencing Tr. 9 (“I understand and Mr. Wated understands that

this court is rightfully troubled by the fact that Mr. Wated has, in the past, committed

crimes, cooperated with the government and [been] given the benefit of that cooperation,

and then committed crimes again in the future.”). Wated cannot now challenge that

determination on appeal. See Fed. R. Crim. P. 32(i)(3)(A); United States v. Jass, 569

F.3d 47, 66 (2d Cir. 2009).

      Third, Wated provides no support for his assertion that a district court may not

consider the need to deter a defendant from thinking that he can repeatedly violate the

law with impunity, so long as he provides substantial assistance to the government when

caught. We reject this argument out of hand; individual deterrence is one of the primary

goals of sentencing.   See 18 U.S.C. § 3553(a)(2)(A), (B) (listing need to “promote

respect for the law” and “afford adequate deterrence to criminal conduct” among

purposes to be considered in sentencing). Persistent criminality in the face of past

cooperation consideration reasonably signals to a district court that a particular

defendant’s cooperation cannot be understood to demonstrate his abandonment of crime

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and that deterrence remains a serious concern. Thus, we identify no procedural error in

this regard.

       To the extent Wated argues that his sentence is substantively unreasonable, he

“bears a heavy burden because our review of a sentence for substantive reasonableness is

particularly deferential.”    United States v. Broxmeyer, 699 F.3d at 289.             When

reviewing a non-Guidelines sentence, we must give due deference to the district court’s

decision that the relevant sentencing factors, as a whole, justify the extent of the variance.

See Gall v. United States, 552 U.S. 38, 51 (2007). We “do not consider what weight we

would ourselves have given a particular factor. Rather, we consider whether the factor,

as explained by the district court, can bear the weight assigned it under the totality of

circumstances in the case.” United States v. Cavera, 550 F.3d at 191 (citation omitted).

We will set aside a sentence on substantive grounds “only in exceptional cases where the

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

189 (internal quotation marks omitted); see United States v. Jones, 531 F.3d 163, 172 (2d

Cir. 2008) (“[D]istrict courts enjoy considerable discretion in identifying the grounds that

can justify a non-Guidelines sentence.”).

       That is not this case.          Wated’s participation in the conspiracies was

extensive—he laundered approximately $4 million in prescription drug proceeds and

directly participated in several in-person transactions. His history of criminal conduct

despite past cooperation consideration raised legitimate deterrence concerns.           Thus,

although Wated’s assistance to the government was both substantial and provided at

considerable risk to himself and his family, we cannot conclude that a below-Guidelines

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sentence of 60 months’ imprisonment is so “shockingly high, shockingly low, or

otherwise unsupportable as a matter of law” as to fall outside the range of permissible

choices available to the sentencing court. United States v. Rigas, 583 F.3d 108, 123 (2d

Cir. 2009).

      We reject Wated’s reasonableness challenge to his sentence as meritless.

3.    Conclusion

      We have considered defendants’ remaining arguments, and we conclude that they

are without merit.    Accordingly, the judgments of conviction and sentences are

AFFIRMED.

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




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