10-2142-cr
United States v. Tapia-Vitinio
                                  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 eleven.

PRESENT: REENA RAGGI,
         RAYMOND J. LOHIER, JR.,
                   Circuit Judges,
         JOHN G. KOELTL,
                   District Judge.*

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UNITED STATES OF AMERICA,
                                          Appellee,

                                 v.                                     No. 10-2142-cr

MICHAEL TAPIA-VITINIO,
                                          Defendant-Appellant.
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FOR APPELLANT:                        Barry D. Leiwant, Federal Defenders of New York, Inc., New
                                      York, New York.

FOR APPELLEE:                         Kan M. Nawaday (Katherine Polk Failla, on the brief), Assistant
                                      United States Attorneys, for Preet Bharara, United States
                                      Attorney for the Southern District of New York, New York,
                                      New York.


           *
         District Judge John G. Koeltl of the United States District Court for the Southern
District of New York, sitting by designation.
       Appeal from the United States District Court for the Southern District of New York

(Lewis A. Kaplan, Judge).

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

DECREED that the judgment entered on May 20, 2010, is AFFIRMED.

       Defendant Michael Tapia-Vitinio stands convicted on a guilty plea of illegally

reentering the United States, without permission, after having been deported following a

conviction for the commission of a felony. See 8 U.S.C. § 1326(a), (b)(1). On appeal,

Tapia-Vitinio challenges the reasonableness of his 29-month prison sentence – a variance

from the applicable 10-to-16-month Guidelines range – on both procedural and substantive

grounds. See United States v. Booker, 543 U.S. 220, 261-62 (2005); United States v.

Canova, 485 F.3d 674, 679 (2d Cir. 2007). Reasonableness review is akin to that for abuse

of discretion, see United States v. Cavera, 550 F.3d 180, 187-89 (2d Cir. 2008) (en banc),

and considers “both the length of the sentence (substantive reasonableness) and the

procedures used to arrive at the sentence (procedural reasonableness),” United States v.

Canova, 485 F.3d at 679. We assume familiarity with the facts and record of prior

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

1.     Procedural Reasonableness

       Tapia-Vitinio submits that the district court committed procedural error by imposing

an above-Guidelines sentence without ever stating that the applicable Guidelines range was

10 to 16 months, and by failing adequately to explain how it arrived at its 29-month sentence.

He contends that the district court failed in its obligation to “begin [its] analysis with the

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Guidelines and remain cognizant of them throughout the sentencing process.” Gall v. United

States, 552 U.S. 38, 50 n.6 (2007).

        There is no merit in these arguments. The Pre-Sentence Report contained the

Guidelines calculation that resulted in the 10-to-16-month range. At sentencing, the district

court expressly “adopt[ed] the presentence report and the guideline computation and range

it contains,” without any objection from the parties. Sentencing Tr. at 2. Moreover, the court

stated at the outset that it was “considering a variance on the upside” from the Guidelines

range, id. at 2-3, and explained in imposing its sentence that Tapia-Vitinio “entered the

United States illegally and w[as] removed multiple times before [he was] ever prosecuted,”

he was eventually prosecuted and served a four-month jail sentence, but he nonetheless again

returned to the United States illegally, id. at 5-6. The district court emphasized the need for

specific and general deterrence, and concluded:

              I think the remarks I have made up to now are sufficient to
              explain the reason for my upward variance from the sentencing
              guideline range. But let me be clear that it is my finding and my
              judgment that the sentence I have imposed is the minimum
              necessary to achieve the various objectives set forth in the
              Sentencing Reform Act in light of the history and characteristics
              of this defendant.

Id. at 7.

        Tapia-Vitinio has offered no reason to doubt that the district court understood the

Guidelines range that it was adopting from the Pre-Sentence Report, or that the court had this

range in mind when it explicitly varied upward. Cf. United States v. Fleming, 397 F.3d 95,

100 (2d Cir. 2005) (“[N]o specific verbal formulations should be prescribed to demonstrate

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the adequate discharge of the duty to ‘consider’ matters relevant to sentencing. As long as

the judge is aware of both the statutory requirements and the sentencing range or ranges that

are arguably applicable, and nothing in the record indicates misunderstanding about such

materials or misperception about their relevance, we will accept that the requisite

consideration has occurred.”). Nor is there any reason why the district court’s explanation

of its reasons for imposing an enhanced sentence should be regarded as inadequate.

Accordingly, we reject Tapia-Vitinio’s procedural challenge.

2.     Substantive Reasonableness

       In arguing that his 29-month non-Guidelines sentence was substantively unreasonable,

Tapia-Vitinio points to the fact that it was almost three times the low end of the Guidelines

range. As this court has made plain, however, “[a] sentencing judge has very wide latitude

to decide the proper degree of punishment for an individual offender and a particular crime,”

and we will “set aside a district court’s substantive determination 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 188-89 (emphasis and internal quotation marks omitted).

Thus, while the parsimony clause requires a district court to impose “a sentence sufficient,

but not greater than necessary,” to meet statutory objectives, 18 U.S.C. § 3553(a), we review

the sentence actually imposed only for reasonableness, see United States v. Williams, 475

F.3d 468, 476-77 (2d Cir. 2007). The question is not whether we “might reasonably have

concluded that a different sentence was appropriate,” Gall v. United States, 552 U.S. at 51,



                                              4
but “whether the sentence imposed falls within the broad range that can be considered

reasonable,” United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008).

       With these principles in mind, we identify no basis to conclude that Tapia-Vitinio’s

sentence is substantively unreasonable.         The district court weighed the relevant

considerations and discussed the seriousness of Tapia-Vitinio’s offense, his history of

repeated illegal reentry into this country, and considerations of specific and general

deterrence. We do not deem this one of the “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). Accordingly, we reject Tapia-

Vitinio’s substantive challenge.

3.     Conclusion

       We have considered Tapia-Vitinio’s other arguments on appeal and conclude that they

are without merit. Accordingly, we AFFIRM the judgment of conviction.

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




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