09-2276-cr
United States v. Pacheco

                                    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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 26th day of May, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          ROBERT A. KATZMANN ,
                 Circuit Judges,
          J. GARVAN MURTHA ,
                 District Judge.*

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 09-2276-cr

GERMAN PACHECO ,

                               Defendant-Appellant.

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FOR APPELLANT:                                       DAVID A. LEWIS, Federal Defenders of New York, Inc., New
                                                     York, New York.


          *
          The Honorable J. Garvan Murtha, Senior Judge of the United States District Court for the
District of Vermont, sitting by designation.

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FOR APPELLEE:                            ALI KAZEMI, Assistant United States Attorney (Jo Ann
                                         Navickas, Assistant United States Attorney, and Benton J.
                                         Campbell, United States Attorney, on the brief), Office of the
                                         United States Attorney, Eastern District of New York,
                                         Brooklyn, New York.

       Appeal from a May 26, 2009 judgment of conviction of the United States District Court for the
Eastern District of New York (Sandra L. Townes, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s judgment is AFFIRMED.

        Defendant-appellant German Pacheco (“defendant”) pleaded guilty in the District Court to
one count of illegal reentry in violation of 8 U.S.C. § 1326(a). The District Court sentenced him
principally to 24 months’ imprisonment.

         Defendant brings this appeal claiming that the District Court violated his Fifth Amendment
right against self-incrimination and his Sixth Amendment right to counsel because “[a]t sentencing
in this case the district court specifically relied on statements that [defendant] made at [a] court-ordered
psychological examination.” Appellant’s Br. 14.

        After reviewing the sentencing transcript, we concluding that the District Court did not
“specifically rel[y]” on the statements in question. Id. Rather, the District Court referred to those
statements only in the process of explaining that, insofar as they were disavowals of prior criminal
conduct, it did not credit them and therefore did not consider them relevant to defendant’s
sentence. Therefore, even assuming, without deciding, that the statements in question were
obtained in violation of defendant’s constitutional rights, they were not relied on by the District
Court and thus do not provide a basis for vacating defendant’s sentence.

         The District Court began the sentencing proceeding by partially summarizing the relevant
facts:

            The facts, as I see them, [are] that [defendant] was in the country illegally
            when he was arrested and charged with the first crime, to which he pled
            guilty[:] sexual misconduct involving a sexual contact with a child.

App. 66-67 (Tr. of Sentencing Hr’g 9-10, May 22, 2009). The District Court then noted that, in the
psychological examination, defendant had “attempt[ed] to recant the conviction for the first crime,”
claiming that “‘it was nothing,’” that he had “‘declared [himself] guilty to get out of jail,’” that it was
simply “‘a stupid mistake,’” and that it consisted of merely “‘getting near and having intentions.’” Id.

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at 67. The District Court then rejected those statements, explaining that it “d[id] not find his
recantations here credible.” Id. The Court never mentioned the statements again.

      Instead, the District Court proceeded to set forth its reasons for sentencing defendant to 24
months’ imprisonment:

                    As I said, what I am looking at is the prior history of Mr. Pacheco.
            He was in the country illegally. He committed a sexual crime. He
            was—already a decision had been made to deport him . . . , but once he was
            convicted, he was deported from this country and then, he comes back. And
            how do we know he’s back? He commits another sexual crime against an
            adult female.

                     And because of these repeated acts of sexual misconduct and
            repeated illegal re-entry into the country, the Court believes that [it] must
            impose a sentence to reflect the seriousness of this offense, to promote
            respect for the law, and provide just punishment for the offense. And most
            important is to afford deterrence of criminal conduct by this defendant and
            also, to protect the public from further crimes of Mr. Pacheco.

Id. at 67-68. Each of those reasons was proper, and the District Court’s explanation of its sentence
did not refer to—or otherwise indicate reliance on—defendant’s statements at the psychological
examination.

       We hold, therefore, that the District Court did not violate defendant’s constitutional rights at
sentencing.
                                         CONCLUSION

        For the foregoing reasons, the May 26, 2009 judgment of conviction is AFFIRMED.




                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court




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