12-2574-cr
United States v. Echeverri

                                      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 17th day of May, two thousand thirteen.

PRESENT:

           PIERRE N. LEVAL,
           JOSÉ A. CABRANES,
           BARRINGTON D. PARKER,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                            No. 12-2574-cr

CARLOS ECHEVERRI, also known as c4p3t069@gmail.com,
also known as capeto69@yahoo.com, also known as
cape266@hotmail.com, also known as capeto66@hotmail.com,
also known as Carlos Millan, also known carpetin69@yahoo.com,
c4b3tco69@gmail.com,

                      Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                  COLLEEN P. CASSIDY, Federal Defenders of
                                                                          New York, Inc., Appeals Bureau, New York,
                                                                          NY.




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FOR APPELLEE:                                           KARIN ORENSTEIN, Emily Berger, Assistant
                                                        United States Attorneys, for Loretta E. Lynch,
                                                        United States Attorney, United States
                                                        Attorney’s Office for the Eastern District of
                                                        New York, Brooklyn, NY.

        Appeal from the amended judgment of the United States District Court for the Eastern
District of New York, imposed May 17, 2012, and filed May 31, 2012 (Sterling Johnson, Jr., Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the cause be REMANDED to the District Court (Sterling Johnson, Jr.,
Judge) with instructions to vacate the amended sentence and to resentence the defendant.

        Defendant Carlos Echeverri was convicted, after entering a plea of guilty, of receipt and
possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(b). In his first appeal
of his sentence, he argued that the District Court provided insufficient explanation of its chosen
sentence. We agreed and vacated his sentence and remanded for resentencing. He now brings a
second appeal, arguing that procedural defects in his resentencing proceeding require us, once again,
to vacate and remand for resentencing. Once again, we must agree. We assume familiarity with the
underlying facts and procedural history of this case.

                                          BACKGROUND

        On January 20, 2010, Echeverri pleaded guilty, without a plea agreement, to one count of
receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), and to one count of possessing
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On December 20, 2010, at his first
sentencing, the District Court denied Echeverri’s request for a below-Guidelines sentence. Instead,
the court determined that “a sentence that is sufficient but not greater than necessary to address this
particular crime is the low end of the guideline.” Joint App’x 66. The court imposed a prison
sentence of 97 months, which was the bottom of what both parties agreed was the correct
Guidelines range.

         Echeverri then appealed, “argu[ing] that the sentence must be vacated because the district
court conducted no independent analysis of the sentencing factors and Guidelines enhancements
and failed to give specific reasons for imposing the sentence.” United States v. Echeverri, 460 F. App’x
54, 55 (2d Cir. 2012). We concluded that “the district court did not provide any additional reasons
for its chosen sentence,” and therefore “‘fail[ed] adequately to explain its chosen sentence.’” Id. at 56
(quoting United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)). We emphasized that, in light of
our decision in United States v. Dorvee, 616 F.3d 174, 185-86 (2d Cir. 2010), a sentencing court must
take particular care “to independently evaluate the enhancements in his particular case” relating to


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child pornography. Echeverri, 460 F. App’x at 56. Accordingly, we vacated Echeverri’s sentence and
remanded to the District Court for resentencing.

        At resentencing, the District Court stated that “[t]his case was remanded from the Court of
Appeals with instructions for the Court to adequately explain its chosen sentence, which I will do.”
Joint App’x 100. The District Court proceeded to explain its Guidelines calculus in detail and
resentenced Echeverri to 97 months in prison. At the conclusion of the proceeding, the
government asked the court to “comment briefly on why this chosen sentence is correct, in addition
to the Guidelines calculation.” Id. at 104-05. The court responded:

                 I’ve consulted 3553(a), recognizing that the Guidelines are advisory, and I
         think that some of the reasons, like 3553(a)(2)(a), talks about the sentence is
         supposed to reflect the seriousness of the offense. And 3553(a)(2)(b) is supposed to
         afford deterrence for criminal conduct.

                 And here, the defendant possessed a video lasting longer than five minutes,
         which is an aggravating factor itself. The defendant showed images involving ropes
         and binding, that the images and included minors under the age of 12.

                The defendant spend a hundred dollars a month on subscriptions to child
         pornography, and he had a job—I think it was as a lifeguard, and he was paid $8 to
         $12 an hour, which is a substantial portion of his salary. And the defendant for a
         period of six years spent three hours per week viewing modeling sites.

                 The defendant was evaluated and he was cleared to be a moderate risk to the
         community, but there was a high risk of re-offense on the internet. That is the
         reason.

Id. at 105. The District Court did not ask Echeverri if he wished to make a statement.

                                                  DISCUSSION

         Echeverri now argues that the District Court “did not afford [him] an opportunity to speak,
as is required by Rule 32.” Appellant’s Br. 20 (referring to Fed. R. Crim. P. 32).1 The government
agrees, Appellee’s Br. 16-20, as do we.

        However, upon review of the transcript of Echeverri’s resentencing, it is also clear that the
District Court and the parties misunderstood our prior order as effecting a limited remand for the
purpose of further explanation of the chosen sentence, rather than as requiring a full resentencing.
The District Court did not pronounce a new sentence, but rather provided reasons for the sentence

     1 In relevant part, Federal Rule of Criminal Procedure 32 requires a sentencing court to “address the defendant

personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Fed. R. Crim.
P. 32(i)(4)(A)(ii).


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that had been previously vacated. Echeverri, 460 F. App’x at 56. We have no choice but to remand
again for a full resentencing, because “when a sentence has been vacated, the defendant is placed in
the same position as if he had never been sentenced.” United States v. Maldonado, 996 F.2d 598, 599
(2d Cir. 1993).

         In remanding for resentencing, we note that the District Court must, as we indicated in our
previous order, “independently evaluate the enhancements in [this] particular case” and explain why
it has selected whatever sentence it chooses to impose. See Echeverri, 460 F. App’x at 56. As we
explained in Dorvee, especially in considering sentences under U.S.S.G. § 2G2.2, district courts may
not presume that a sentence falling within the Guidelines range satisfies the requirements of 18
U.S.C. § 3553(a), including the parsimony clause. 616 F.3d at 182-83, 188. The District Court must
carefully consider and explain the sentence in relation to the purposes of sentencing.

         Although the parties agree that we must remand for resentencing, they disagree as to who
should serve as the resentencing judge. Echeverri would like us to remand to a new judge for
resentencing, while the government contends that reassignment is not warranted. In this case, the
failure to conduct a full resentencing was an honest mistake by an experienced, able, and respected
judge. We are confident that on remand the District Court will conduct a full resentencing, in
compliance with all procedural requirements. In short, we have no reason to think reassignment is
justified. See United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (“Absent proof of personal bias
requiring recusation, . . . the principal factors considered by us in determining whether further
proceedings should be conducted before a different judge are (1) whether the original judge would
reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind
previously-expressed views or findings determined to be erroneous or based on evidence that must
be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3)
whether reassignment would entail waste and duplication out of proportion to any gain in
preserving the appearance of fairness.”).

                                         CONCLUSION

        We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we REMAND the cause to the District Court (Sterling Johnson, Jr., Judge) with instructions
to vacate the amended sentence and to resentence the defendant.

                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




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