11-0413-cr
United States v. Romero



                             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 7th day of November, two thousand twelve.

PRESENT:

                    PIERRE N. LEVAL,
                    JOSÉ A. CABRANES,
                    ROBERT D. SACK,

                                  Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                    v.                                                 No. 11-0413-cr

CHRISTOPHER ROMERO,

                  Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                           JOHN J. O’DONNELL, Assistant United States
                                                        Attorney, (Brent S. Wible, Assistant United
                                                        States Attorney, and Preet Bharara, United
                                                        States Attorney for the Southern District of
                                                        New York, New York, NY, of counsel.)


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FOR DEFENDANT-APPELLANT:                                          ALEXANDER E. EISEMANN, New York, NY.

        Appeal from amended judgment of conviction entered on January 11, 2011, by the United
States District Court for the Southern District of New York (William H. Pauley III, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Christopher Romero was found guilty after a jury trial of committing
Hobbs Act extortion, in violation of 18 U.S.C. §§ 1951, 2, and of conspiring to commit Hobbs Act
extortion, in violation of 18 U.S.C. § 1951. The jury also found Romero guilty of conspiring to
distribute and possession with the intent to distribute 50 grams or more of methamphetamine and a
quantity of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. We assume
the parties’ familiarity with the facts and procedural history of this case.

                                                                 A.

         On March 3, 2006, the District Court sentenced Romero principally to a prison term of 262
months’ imprisonment and imposed a $10,000 fine. Romero thereafter appealed, raising several
claims. We affirmed the judgment of the District Court in all respects but, “[b]y agreement of the
parties . . . remand[ed] Romero’s cause solely for the purpose of requiring the District Court to
reconsider whether to impose a fine.” United States v. Romero, 304 F. App’x 14, 19 (2d Cir. 2008).1

         On February 4, 2010, Romero filed a petition with the District Court to vacate, set aside or
correct his sentence due to ineffective assistance of counsel, denial of his speedy trial rights and
errors in his sentencing. See 28 U.S.C. § 2255. This was the first time Romero raised his ineffective
assistance claims. While the § 2255 petition was pending, the District Court held a resentencing
hearing on January 4, 2011, in accordance with our mandate providing for a limited remand. At that
proceeding, however, the parties agreed that Romero’s criminal history had been overstated and
jointly applied to expand the resentencing beyond the limited issue of whether to impose a fine.
The District Court discussed with counsel whether the claim of ineffective assistance should be
resolved in the resentencing proceeding or left to be raised later in a § 2255 petition. Romero’s
counsel said, “I guess it’s something I should leave to Your Honor . . . .” The District Court
expressed a preference for leaving it to be raised by a § 2255 petition. Romero’s counsel then
responded that he did not “really have a strong feeling that it should be done now rather than later”


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            We noted our concern that “[i]n imposing a fine, the [District] Court erroneously observed that the debt
would make Romero eligible for obtaining a job during incarceration,” Romero, 304 F. App’x at 18-19 (alterations, ellipsis,
and internal quotation marks omitted) when in actuality “a fine is not a prerequisite for obtaining employment during
incarceration,” id. (citing 28 C.F.R. § 345.33(e)).

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and did not “have any problem with going forward with the sentencing and then continuing with
any claims that are viable through a 2255.” Observing that an incorrect criminal history constituted
plain error, the District Court granted the application for de novo resentencing within a week, on
January 10, 2011, and resentenced Romero to a below-Guidelines sentence of 186 months’
imprisonment and concluded that a fine was unnecessary.

                                                      B.

        The sole question that Romero now raises on appeal is whether the District Court abused its
discretion by deferring consideration of his ineffective assistance claims to an anticipated § 2255
proceeding, rather than addressing them during his resentencing. Having consented to deferring his
ineffective assistance claims until a § 2255 proceeding following the imposition of his sentence,
Romero cannot now be heard to contend that the District Court abused its discretion in doing what
he consented to. Under these circumstances, we decline to find any abuse of discretion on the part
of the District Court in postponing the consideration of a § 2255 petition.

                                         CONCLUSION

       We have considered Romero’s arguments on appeal and find them to be without merit.
Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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