14-436-cr
United States v. Jimenez
                            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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
24th day of February, two thousand fifteen.

Present:    Barrington D. Parker,
            Peter W. Hall,
            Debra Ann Livingston,
                           Circuit Judges,
____________________________________________________

United States of America,

                                   Appellee,

                 v.                                                 No. 14-436-cr

Carlos Lorenzo Jimenez,

                  Defendant-Appellant.
____________________________________________________

FOR APPELLANT:                        JONATHAN I. EDELSTEIN, Edelstein & Grossman, New
                                      York, NY.

FOR APPELLEE:                 NATHAN D. REILLY and DAVID C. JAMES, Assistant United
                              States Attorneys, for Loretta E. Lynch, United States
                              Attorney for the Eastern District of New York, Brooklyn,
                              NY.
_____________________________________________________

        Appeal from the United States District Court for the Eastern District of New York

(Korman, J.).

                                                1
       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED and that the case is

REMANDED for the limited purpose of conforming the written judgment to the judgment

announced in court.

       Defendant-Appellant Carlos Lorenzo Jimenez challenges the validity of his plea and the

reasonableness of his sentence. (Korman, J.). We assume the parties’ familiarity with the

underlying facts, the procedural history, and the issues presented for review.

        Jimenez’s contention that his plea colloquy was insufficient under Federal Rule of

Criminal Procedure 11 is without merit. Jimenez has failed to demonstrate that the district court

committed plain error, as he must because he neglected to raise the issue before the district court.

See United States v. Yang Chia Tien, 720 F.3d 464, 469 (2d Cir. 2013). Contrary to Jimenez’s

contention, the record does not show that the magistrate judge’s discussion of the potential

immigration consequences of his plea was affirmatively misleading. Even under Jimenez’s

interpretation of the colloquy, the magistrate judge accurately informed him that deportation was

a potential consequence of his plea. See Zhang v. United States, 506 F.3d 162, 168 (2d Cir.

2007) (“If the statements were accurate at the time they were made, then they could not

reasonably be said to be misleading and could not have rendered [defendant’s] guilty plea

involuntary.”). Moreover, other documents that Jimenez signed, and which were translated for

him, make clear that he was aware that deportation following a guilty plea was presumptively

mandatory and that he wished to plead guilty regardless. He, therefore, cannot demonstrate a

reasonable probability that but for the magistrate judge’s supposed error, he would not have

pleaded guilty. See United States v. Adams, 768 F.3d. 219, 223 (2d Cir. 2014) (“To satisfy the

plain error standard applicable in this case, however, the defendant must also establish ‘a



                                                 2
reasonable probability that, but for the error, he would not have entered the plea.’” (quoting Yang

Chia Tien, 720 F.3d at 469)).

         Jimenez has similarly failed to demonstrate that the district court abused its discretion

when it sentenced him to a term that included two years of supervised release. See United States

v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).1 While defendant may have preferred a

sentence that did not include any term of supervised release, the term imposed was three years

below the statutory minimum and at the very bottom of the guidelines range. It is clear from the

record that the district court considered all of the sentencing factors when reaching its decision

and a two-year term of supervised release is “‘within the range of permissible decisions’” based

on the facts of this case. Id. (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).

         All parties agree that, while the district court orally sentenced Jimenez to a two-year term

of supervised release, the written judgment incorrectly indicates a three-year term of supervised

release. A remand to correct the written judgment to impose the term announced at the time of

sentencing is therefore appropriate. See, e.g., United States v. Carr, 557 F.3d 93, 109–10 (2d

Cir. 2009).

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

         Accordingly, with the exception noted above regarding the written form of the judgment,

the judgment of the district court is AFFIRMED. This case is REMANDED to the District

Court, however, for the limited purpose of correcting the written judgment to conform it to the

judgment announced at the time of sentencing.

                                                               FOR THE COURT:
                                                               Catherine O’Hagan Wolfe, Clerk




1
    Jimenez only challenges the substantive reasonableness of his sentence.
                                                  3
