14-4717-cr
United States v. Fuentes



                                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
22nd day of January, two thousand sixteen.

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                           v.                                                 14-4717-cr

ALEXIS FUENTES, AKA Luis Santana-Avila,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:          Devin McLaughlin, Langrock Sperry & Wool, LLP, Middlebury,
                                  VT.

Appearing for Appellee:           Paul D. Silver, Assistant United States Attorney (Edward Grogan,
                                  Assistant United States Attorney, on the brief), for Richard S.
                                  Hartunian, United States Attorney for the Northern District of New
                                  York, Albany, NY.

Appeal from the United States District Court for the Northern District of New York (Suddaby,
J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Alexis Fuentes appeals from the December 11, 2014 judgment of the United
States District Court for the Northern District of New York (Suddaby, J.) sentencing Fuentes to a
term of 41 months’ imprisonment, after he pleaded guilty to illegal reentry in violation of 8
U.S.C. §§ 1326(a), (b)(2). On appeal, Fuentes argues that his sentence was substantively
unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.

       We review the district court’s sentence under a “deferential abuse-of-discretion
standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks
omitted). In reviewing for substantive error, we “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. “[W]e will not substitute our
own judgment for the district court’s on the question of what is sufficient to meet the § 3553(a)
considerations in any particular case” but “will instead 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.” Id. at 189 (emphasis and internal quotation marks omitted).

        Fuentes’s offense level for the illegal reentry offense was increased by 16 levels under
U.S.S.G. § 2L1.2(b)(1)(A)(i) because Fuentes had previously been deported after a 2002
Pennsylvania state conviction for a drug trafficking offense with a sentence in excess of 13
months. Fuentes argues that the application of the 16-level enhancement double counts his 2002
conviction, because the state conviction was also taken into account in calculating Fuentes’s
criminal history. However, this Court has held that it is “well-established . . . 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). This is because “the offense level and
criminal history category measure different things. The offense level represents a judgment as to
the wrongfulness of the particular act. The criminal history category principally estimates the
likelihood of recidivism.” Id. (internal quotation marks omitted); see also United States v.
Campbell, 967 F.2d 20, 25 (2d Cir. 1992). Here, the fact that the offense level was increased by
virtue of a previous aggravated felony conviction indicates that “the prior conviction is a critical
part of what makes the current reentry wrongful.” Campbell, 967 F.2d at 25. Furthermore, any
general argument by Fuentes that “because the illegal reentry is itself a nonviolent act, the 16-
level enhancement is unduly harsh” has been expressly rejected by this circuit. United States v.
Perez-Frias, 636 F.3d 39, 44 (2d Cir. 2011).

         Next, Fuentes argues that the Section 2L1.2(b)(1)(A)(i) enhancement is “suspect because
it is not supported by empirical data.” Fuentes Br. at 16. Although, under Kimbrough v. United
States, 552 U.S. 85 (2007), a district court may, in its discretion, decline to apply an
enhancement that is not based on empirical evidence on the ground that doing so would yield a
sentence greater than necessary, there is no basis for concluding that applying an enhancement
not based on empirical data would always yield an excessive sentence. See Perez-Frias, 636 F.3d


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at 43; see also United States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir. 2012); United
States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009).

         Fuentes argues for the first time on appeal that the enhancement violates his rights to
equal protection and due process because there is no rational basis for the distinction between
how prior felonies are counted for illegal reentry convictions and for other convictions. Because
Fuentes did not raise this argument below, we review for plain error. United States v. Bonilla,
618 F.3d 102, 111 (2d Cir. 2010). “Because the distinction drawn by the Guidelines does not
involve a suspect classification or impinge on a fundamental right, it need survive only rational
basis scrutiny.” United States v. Thomas, 628 F.3d 64, 70 (2d Cir. 2010) (internal quotation
marks omitted). The disparity thus survives an “equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for the classification.” Id.
Further, there is “a strong presumption of validity,” and “the burden [is] on the person attacking
its rationality to negative every conceivable basis which might support it.” Id. at 70-71 (internal
quotation marks omitted). Fuentes has not met this high burden here, as the enhancement could
serve the rational purpose of providing additional deterrence to undocumented immigrants with
drug trafficking felonies and other serious crimes from reentering the country, a consideration
not present with other crimes. See United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir.
2007); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993); United States v.
Adeleke, 968 F.2d 1159, 1160-61 (11th Cir. 1992).

         Because the 16-level enhancement was properly applied, Fuentes’s Guidelines range was
41 to 51 months. Fuentes was sentenced to 41 months’ imprisonment, at the low end of the
Guidelines range. Although there is no bright-line rule, “[w]e recognize that in the overwhelming
majority of cases, a Guidelines sentence will fall comfortably within the broad range of
sentences that would be reasonable in the particular circumstances.” United States v. Fernandez,
443 F.3d 19, 27 (2d Cir. 2006). This is one of the “overwhelming majority” of cases where a
Guidelines sentence is reasonable. United States v. Rodriguez, 715 F.3d 451, 451 (2d Cir. 2013),
cert. denied, 134 S. Ct. 1042 (2014). First, Fuentes’s purported purpose in illegally reentering, to
assist his teenage daughter, is not a basis for a variance, as the statute “is designed to deter
deported aliens from illegally reentering for any reason, not merely from reentering in order to
commit a crime.” United States v. Carrasco, 313 F.3d 750, 755 (2d Cir. 2002). Additionally, the
district court did not err in declining to impose a below-Guidelines sentence based on the facts
that his prior conviction was several years old and that he did not have new convictions between
his drug trafficking conviction and his arrest in this case. The Guidelines “provide no time limit
on the prior federal and state convictions that may be used to trigger a sentence enhancement,”
United States v. Stultz, 356 F.3d 261, 268 (2d Cir. 2004), and Fuentes would have had no
opportunity to commit another crime in the United States, as he was removed after he served his
sentence for the 2002 conviction, and he was arrested immediately upon reentering the country
in 2014. In sum, there is nothing about the particular circumstances of Fuentes’s case that
renders a 41-month sentence substantively unreasonable.




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        We have considered the remainder of Fuentes’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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