19-1988
United States v. Reyna

                          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
3rd day of June, two thousand twenty.

Present:
                 ROBERT D. SACK,
                 RICHARD C. WESLEY,
                 DEBRA ANN LIVINGSTON,
                       Circuit Judges,

_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                  19-1988

RICARDO A RIEL REYNA , ALSO      KNOWN AS   EDUARDO
E. SIMMONS,

                  Defendant-Appellant.
_____________________________________

For Appellee:                               DAVID C. JAMES, Assistant United States Attorney,
                                            Keith D. Edelman, Assistant United States Attorney, for
                                            Richard P. Donoghue, United States Attorney for the
                                            Eastern District of New York, Brooklyn, NY

For Defendant-Appellant:                    EUNICE C. LEE, Federal Defenders of New York
                                            Appeals Bureau, New York, NY



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       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Johnson, Jr., S.J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Ricardo Ariel Reyna appeals from a June 20, 2019 final judgment of conviction of the

United States District Court for the Eastern District of New York (Johnson, Jr., S.J.) for illegal

reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2), sentencing him principally to 87 months of

imprisonment and three years of supervised release. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       I. Procedural Reasonableness

       For the first time on appeal, Reyna argues that the district court erred in imposing a three-

year term of supervised release because Section 5D1.1 of the Sentencing Guidelines states that a

court "ordinarily should not impose a term of supervised release in a case in which . . . the

defendant is a deportable alien who likely will be deported after imprisonment," U.S.S.G. §

5D1.1(c), unless the court determines that supervised release "would provide an added measure of

deterrence and protection based on the facts and circumstances of a particular case," U.S.S.G. §

5D1.1, cmt. n. 5.     Reyna argues that he is a deportable alien likely to be deported after

imprisonment and that the district court failed adequately to explain the need for supervised release

as an “added measure of deterrence and protection.” Id. Accordingly, Reyna concludes that the

district court’s imposition of the supervised release term was procedurally unreasonable, requiring

vacatur of his sentence. For the following reasons, we disagree.

       We review a sentence for procedural reasonableness “under a ‘deferential abuse-of-

discretion standard.’” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (quoting


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Gall v. United States, 552 U.S. 38, 41 (2007)). “A sentence is procedurally unreasonable if the

district court fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats

the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence

based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United

States v. Sampson, 898 F.3d 287, 311 (2d Cir. 2018) (internal quotation marks omitted).

       Because Reyna did not object to the supervised release term below, the error is

unpreserved. We review unpreserved claims of procedural unreasonableness for plain error. See

United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010). “Under plain error review, the court

must first find an obvious error that affects substantial rights.      Then, the court may use its

discretion to correct the error if it seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (citation and internal quotation marks omitted).

       Even assuming that the district court did not adequately explain its reasons for imposing

supervised release, Reyna cannot show that the district court plainly erred. Reyna’s “criminal

record demonstrates that supervised release ‘would provide an added measure of deterrence and

protection based on the facts and circumstances of [this] particular case.’”         United States v.

Alvarado, 720 F.3d 153, 160 (2d Cir. 2013) (per curiam) (quoting U.S.S.G. § 5D1.1, cmt. n. 5).

Reyna has a long criminal history that includes crimes of violence and crimes committed during

periods of incarceration.    A-41.    In light of that long history, and of Reyna’s failure to be

deterred following both previous convictions for serious offenses and previous deportations, there

is no reasonable probability that the procedural error complained of here affected the sentence

imposed. Alvarado, 720 F.3d at 160 (citing United States v. Marcus, 560 U.S. 258, 262 (2010)).

As such, “since it is clear that [the alleged error] did not affect the outcome of the sentencing




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proceeding,” there can be no finding of plain error “because the alleged error did not affect

[Reyna’s] substantial rights.” Id.

       II.     Substantive Reasonableness

       We review sentences for substantive reasonableness also employing an abuse-of-discretion

standard. See Thavaraja, 740 F.3d at 258. This Court's review for substantive reasonableness,

moreover, “is particularly deferential[,] . . . identifying as substantively unreasonable only those

sentences that are so ‘shockingly high, shockingly low, or otherwise unsupportable as a matter of

law’ that allowing them to stand would ‘damage the administration of justice.’”     United States v.

Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United States v. Rigas, 583 F.3d 108, 123

(2d Cir. 2009)).   “In reviewing [a sentence] for substantive reasonableness, we consider the

totality of the circumstances, and reverse only in exceptional cases where the trial court’s decision

cannot be located within the range of permissible decisions[.]” United States v. Mason, 692 F.3d

178, 181 (2d Cir. 2012) (internal quotation marks and citation omitted).        Adjudged by these

standards, the sentence imposed here falls well within the ambit of appropriate sentences.

       First, the sentence imposed by the district court was 87 months, within the applicable

Guidelines range of 70 to 87 months. This court has stated “that in 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.” United States v. Fernandez, 443 F.3d 19, 27 (2d

Cir. 2006) abrogated on other grounds by Rita v. United States, 551 U.S. 338 (2007). Second,

although Reyna’s current conviction was for illegal reentry, the district court properly considered

and weighed Reyna’s long history of violent crime when assigning the sentence.            Given this

history and Reyna's history of criminal conduct during periods of incarceration, the district court




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acted well within its discretion in imposing a sentence that is not shockingly high, shockingly low,

or otherwise unsupportable as a matter of law.

                                         *       *      *

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

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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