    13-2455
    United States v. Kasparek



                            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
    19th day of September, two thousand fourteen.

    PRESENT:
                ROBERT A. KATZMANN,
                                  Chief Judge,
                ROBERT D. SACK,
                GERARD E. LYNCH,
                                  Circuit Judges.
    ____________________________________________

    ROBERT KASPAREK,

                                Petitioner,

                       v.                                        No. 13-2455

    UNITED STATES PAROLE COMMISSION,

                                Respondent.

    ____________________________________________

    For Petitioner:                              MOLLY K. CORBETT (Paul J. Evangelista, Assistant
                                                 Federal Public Defender, on the brief), for Lisa A.
                                                 Peebles, Federal Public Defender for the Northern
                                                 District of New York, Albany, NY.




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For Respondent:                               SHARON GERVASONI, Assistant General Counsel,
                                              for J. Patricia Smoot, Acting General Counsel,
                                              United States Parole Commission, Washington, DC.

       Petition for review of a transfer-treaty determination by the United States Parole

Commission.

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

DECREED that the petition for review is DENIED.

       Robert Kasparek, a transfer treaty prisoner imprisoned within this Circuit, petitions for

review of the United States Parole Commission’s determination of his release date pursuant to 18

U.S.C. § 4106A. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to deny the petition.

       Kasparek was convicted of second-degree murder by a Canadian court and sentenced to

life imprisonment, as is mandatory under Canadian law, see Canada Criminal Code, R.S.C. 1985,

c. C-46, § 235, with a possibility of parole after fourteen years. The U.S. Parole Commission is

authorized “to determine a release date for an offender transferred to the United States as though

the offender were convicted in a United States district court of a similar offense.” Austin v. U.S.

Parole Comm’n, 448 F.3d 197, 200 (2d Cir. 2006) (citing 18 U.S.C. § 4106A(b)(1)(A)). Upon

Kasparek’s transfer to the United States, the Parole Commission determined that the analogous

offense under United States law is also second-degree murder. Applying the Guidelines in force

at the time of Kasparek’s conviction, the Commission further determined that a base offense

level of 33 for his offense should be increased by two levels because the offense involved a

vulnerable victim, but decreased by two levels because the defendant accepted responsibility for

the offense. Based on a total offense level of 33 and a criminal history category of III, the


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Commission calculated that the Guidelines range applicable to Kasparek’s offense of conviction

is 168–210 months’ imprisonment. The Commission, however, determined that an upward

departure from this range was appropriate in light of Kasparek’s criminal history and extreme

conduct, see U.S.S.G. §§ 4A1.3 & 5K2.8, and therefore set Kasparek’s release date to coincide

with 320 months’ total incarceration.

       Kasparek contends that the Commission’s determination of his release date violated his

Sixth Amendment right to jury trial as elaborated by Alleyne v. United States, 133 S. Ct. 2151

(2013), and is both procedurally and substantively unreasonable.

       Before turning to the reasonableness of Kasparek’s sentence, we reject his Sixth

Amendment claim as foreclosed by the law of our Circuit. As we have previously held,

“[b]ecause [petitioner’s] punishment derives from his violation of [foreign] law, he does not

enjoy the Sixth Amendment right to trial by jury . . . .” Austin, 448 F.3d at 201. We note,

moreover, that the factfinding to which Kasparek objects related only to the Commission’s

“factfinding used to guide judicial discretion,” Alleyne, 133 S. Ct. at 2161 n.2, not to the

determination of the applicable statutory maximum or minimum term, which was at issue in

Alleyne. Alleyne, therefore, is wholly inapposite to this case.

       As to reasonableness, we review the Parole Commission’s determination of Kasparek’s

release date “‘as though the determination appealed had been a sentence imposed by a United

States district court.’” Austin, 448 F.3d at 200 (quoting 18 U.S.C. § 4106A(b)(2)(B)).

Accordingly, we review the Commission’s release-date determination for reasonableness, which

includes a procedural and substantive component. See United States v. Cavera, 550 F.3d 180,

189 (2d Cir. 2008) (en banc).


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       “Procedural error occurs in situations where, for instance, the district court miscalculates

the Guidelines; treats them as mandatory; does not adequately explain the sentence imposed;

does not properly consider the [18 U.S.C.] § 3553(a) factors; bases its sentence on clearly

erroneous facts; or deviates from the Guidelines without explanation.” United States v. Cossey,

632 F.3d 82, 86 (2d Cir. 2011) (per curiam). By contrast, we are especially deferential to the

substantive reasonableness of a sentence, and will “set aside a . . . substantive determination”

about the appropriate sentence “only in exceptional cases where the . . . decision ‘cannot be

located within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting United

States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).

       Kasparek groups a number of disparate arguments under the umbrella of a procedural

challenge to the Commission’s determination of his release date. None was raised before the

Parole Commission, and so we review his claims for plain error. See United States v.

Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Under that standard of review, we will not

correct a putative error unless, among other considerations, the error is “clear or obvious, rather

than subject to reasonable dispute.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal

quotation marks omitted).

       Kasparek principally argues that the Commission erred in applying a two-level

vulnerable-victim enhancement to his base offense level pursuant to U.S.S.G. § 3A1.1 because

the Commission lacked a sufficient and particularized factual basis to conclude the victim was

vulnerable.” We find no plain error in the Commission’s determination that a two-level increase

to the base offense level was warranted. As the Commission explained, the offense of conviction

involved the extremely violent murder of a seventy-year-old woman. A Probation Officer’s


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report to the Commission similarly noted the Canadian sentencing judge’s description of the

offense: The crime was a “brutal and callous” offense against “a defenceless 70 year old woman

in the sanctity of her home in the middle of the night.” J.A. 56. The Canadian authorities also

noted the conclusion of a pathologist that “having received [nineteen] blows, [the victim] tried to

escape and was pursued by the accused who then stabbed her in the back and the abdomen.” J.A.

16. “[A]lthough there is skepticism of generalized assumptions about a victim’s vulnerability

based upon that person’s membership in a class, many cases have upheld vulnerable victim

enhancements based on group generalizations.” United States v. McCall, 174 F.3d 47, 51 (2d Cir.

1998). Thus, it is at least subject to reasonable dispute whether a seventy-year-old woman living

alone is particularly vulnerable to the violent offense of which the petitioner was convicted. We

accordingly conclude that the Commission did not plainly err in concluding that the petitioner

committed this violent offense against a vulnerable victim.

       Kasparek also argues that the Commission’s release-date determination extended the

duration of his sentence beyond the term that he would have served in Canada. His briefing

equivocates in styling this claim as procedural error; as a violation of his Sixth Amendment

rights; and as a violation of both the applicable treaty, Treaty Between the United States of

America and Canada on the Execution of Penal Sentences, U.S.-Can., art. IV(3), Mar. 2, 1977,

30 U.S.T. 6263, and statutory law, 18 U.S.C. § 4106A(b)(1)(C). Contrary to the discordant

characterizations of the Canadian sentence contained in Kasparek’s briefing, we note that he was

sentenced to life imprisonment with a possibility of parole after fourteen years. And, indeed, as

his continued incarceration in Canadian prison long after he became parole-eligible

demonstrates, Kasparek did not become entitled to release the moment fourteen years had run on


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his life sentence. His sentence was, instead, avowedly a sentence to “life” imprisonment with the

possibility of parole. We therefore discern no breach of the treaty, or the transfer statute, in the

Commission’s determination that Kasparek should be released after 320 months’ total

incarceration.

         Finally, Kasparek argues for the first time in his reply brief that the Commission’s

determination was substantively unreasonable. “We will not consider an argument raised for the

first time in a reply brief.” United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003). Even if we

were to assess the substantive reasonableness of a 320-month term of incarceration, we would

find that the term fits comfortably within the range of permissible decisions for so violent a

crime.

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

For the reasons stated herein, the petition for review is DENIED.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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