09-5268-cr
USA v. Reyes-Parsino


                           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, at 500 Pearl Street, in the City of New York,
on the 1st day of December, two thousand ten.

Present: RALPH K. WINTER,
         GUIDO CALABRESI,
         ROBERT A. KATZMANN,
                           Circuit Judges,
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                           No. 09-5268-cr

JORGE REYES-PARSINO, also known as Renee Animas, also known as Rene Animas,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         Darrell B. Fields, Federal Defenders of New
                                                 York, Inc., Appeals Bureau, New York, N.Y.

For Appellee:                                    Amir H. Toossi, Assistant United States
                                                 Attorney (Susan Corkery, on the brief), for
                                                 Loretta E. Lynch, United States Attorney for the
                                                 Eastern District of New York, Brooklyn, N.Y.
      Appeal from the United States District Court for the Eastern District of New York
(Cogan, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Rene Animas* appeals from an October 26, 2009 judgment of the

United States District Court for the Eastern District of New York (Cogan, J.) entered following a

plea of guilty to illegal reentry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). We assume

the parties’ familiarity with the underlying facts, procedural history of this case, and the

specification of issues on appeal.

       The district court sentenced Animas principally to 42 months’ imprisonment, and Animas

now challenges the substantive reasonableness of that sentence. Our review of the district court’s

sentence for reasonableness “amounts to review for abuse of discretion.” United States v.

Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S. 38, 46

(2007)). Substantive determinations shall be set aside “only in exceptional cases where the trial

court’s decision ‘cannot be located within the range of permissible decisions.’” Id. at 189

(quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). “[W]e do not presume that a

Guidelines-range sentence is reasonable,” but rather “take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing

in mind the institutional advantages of district courts.” Id. at 190.

       Animas first contends that § 2L1.2 of the Guidelines irrationally over-punishes the

nonviolent act of illegal reentry. Section 2L1 provides for a base offense level of 8, with a 16-


       *
        Defendant-Appellant informed the district court that his true name is Rene Animas and
accordingly we refer to him by that name.

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point upward adjust if the deportation occurred after the alien was convicted of a felony that is a

“crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A) & cmt. n.1(B)(iii). It is undisputed that

Animas’s prior conviction for assault qualifies as such a crime. He argues that the resulting

offense level of 24 is “irrational” for two reasons: it double counts his criminal history and is

excessive for a nonviolent offense in comparison with the comparable or lower offense levels of

certain violent offenses. With respect to the double counting argument, “[i]t is well-established

in this Circuit that a district court does not err when it uses a prior offense to calculate both the

offense level and the criminal history category to determine the correct Guidelines range in

unlawful reentry cases.” United States v. Pereira, 465 F.3d 515, 522 (2d Cir. 2006). Nor is

Animas’s sentence substantively unreasonable based on its offense level vis-à-vis the offense

levels of various other crimes. Although illegal reentry is a nonviolent offense, we cannot say

that it is irrational to increase significantly its relatively low base offense level of 8 for

defendants who have prior violent felony convictions. See, e.g., United States v. Montague, 376

F. App’x 124, 127 (2d Cir. 2010) (summary order) (“The Sentencing Commission, and the

district court, are entitled to make their own judgments about the need for punishment and

deterrence, and the relative seriousness of different offenses.”).

        Animas next argues that his sentence is unreasonable because defendants in districts with

so-called “fast-track” disposition programs receive much lower sentences. However, this

argument is foreclosed, as we have held “that a district court’s refusal to adjust a sentence to

compensate for the absence of a fast-track program does not make a sentence unreasonable.”

United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006). Any argument that fast-track versus

non-fast-track disparities ought to be taken into account under 18 U.S.C. § 3553(a)’s parsimony


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clause is likewise unavailing, because “defendants in fast-track districts [are] not similarly

situated to those in non-fast-track districts.” United States v. Hendry, 522 F.3d 239, 242 (2d Cir.

2008) (per curiam) (citing Mejia, 461 F.3d at 162).

       Finally, Animas argues that his sentence is unreasonable in light of the § 3553(a) factors.

However, the district court explicitly considered defendant’s arguments and took a different view

of the weight of the § 3553(a) factors in this case, particularly with respect to the need to deter

Animas from recidivism. This is precisely the sort of weighing that is entrusted to the discretion

of the district court, and we will not second guess the district court’s determination on review.

        We have considered all of Animas’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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