      15-3680 (L)
      United States v. Geraldo


                                 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 TO 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 19th day of April, two thousand seventeen.

      PRESENT:
                         ROBERT A. KATZMANN,
                              Chief Judge,
                         ROSEMARY S. POOLER,
                         GERARD E. LYNCH,
                              Circuit Judges.


      UNITED STATES OF AMERICA,

                                  Appellee,

                         v.                                         Nos.   15-3680(L)
                                                                           15-3976(CON)
                                                                           15-4042(CON)

      MANUEL GERALDO, HARGELIS VARGAS, JUGO CESPEDES,

                                  Defendants-Appellants,

      LEONIDES SIERRA, AKA Sealed Defendant 1, AKA
      Junito, AKA Junior, RICHARD GONZALEZ, AKA
      Sealed Defendant 2, AKA Webb, AKA Webb Killa,
      JOSE CRUZ, AKA Sealed Defendant 3, AKA Prostituto,
      AKA Prosti, CARLOS URENA, AKA Sealed Defendant
      4, AKA Salcedo, AKA White Boy, EDWIN CIRIACO,
      Sealed Defendant 5, AKA Machete, AKA Bobie,

                                                           1
ANIBAL RAMOS, AKA Sealed Defendant 6, AKA
Moreno, ALFRED LAFORD, AKA Sealed Defendant 7,
AKA Sony, ANTONIO PENA, AKA Sealed Defendant
8, AKA La Percha, JULIO BRITO, AKA Sealed
Defendant 9, AKA Fresh, JUAN NUNEZ, AKA Sealed
Defendant 10, AKA Jesu Christo, CHRISTOPHER
JOHNSON, AKA Sealed Defendant 11, AKA Chris,
DONALD NOVAS, AKA Sealed Defendant 12, AKA
Oliver, AKA Soca, AKA Vale, AKA Fish, JOSE
FELICIANO, AKA Sealed Defendant 13, AKA Lito,
FELIX LOPEZ-CABRERA, AKA Sealed Defendant 14,
AKA Suztancia, CARLOS LOPEZ, AKA Sealed
Defendant 15, AKA Carlito, JOSE MARMELEJOS,
AKA Sealed Defendant 16, AKA Ochenta, NOEL
ACOSTA-DISLA, AKA Sealed Defendant 17, AKA
Fugitivo, TOMAS CASTILLO, AKA Sealed Defendant
18, AKA Chobolo, AKA Chobolito, AKAHUGO
ALMONTE, AKA Sealed Defendant 19, AKA Fufu,
CESAR ALMONTE, AKA Sealed Defendant 20, AKA
Bullet, CARLONELL PAULINO, AKA Sealed
Defendant 21, AKA Pope, RONALD PERALTA, AKA
Sealed Defendant 22, AKA Romo, JOSE CASTILLO,
AKA Sealed Defendant 23, AKA Smith, AKA Jay
Blanco, AKA Daddy, MARK MARTINEZ, AKA Sealed
Defendant 24, JOSE BALLENILLA, AKA Sealed
Defendant 25, AKA Correa, LUIS BELTRAN, AKA
Sealed Defendant 26, AKA Gualey, LUIS CABRERA-
RECIO, AKA Sealed Defendant 27, AKA Nueve, AKA
Nuevecito, LOREN GUZMAN, AKA Sealed Defendant
28, AKA Crispy, MELVIN AMPARO, AKA Sealed
Defendant 29, AKA Flynt, JONATHAN MAJDANSKI,
AKA Sealed Defendant 30, AKA Indio, MIGUEL
STRONG, AKA Sealed Defendant 31, AKA Kiki, JOSE
BARCARER, AKA Sealed Defendant 32, AKA
Papotico, AKA Basura, JOSE GERONIMO-FIGUEROA,
AKA Sealed Defendant 33, AKA Mocha, EDGARDO
PONCE, AKA Sealed Defendant 34, AKA Tito,
MICHAEL DELACRUZ, AKA Sealed Defendant 35,
AKA 40, DAVID PATINO, AKA Sealed Defendant 36,
AKA Bori, AKA Chingo, EDUARDO HOLGUIN, AKA
Sealed Defendant 37, AKA James Baston, RONNY
EVANGELISTA, AKA Sealed Defendant 38, LUIS
CABRERA, AKA Sealed Defendant 39, AKA Bling
Bling, MR. CARLOS RODRIGUEZ, AKA Sealed
Defendant 40, HENRY O. PENA, AKA Sealed
Defendant 41, AKA Melmo, DAVE MCPHERSON,

                                      2
AKA Sealed Defendant 42, VANCE HILL, AKA Sealed
Defendant 43, AKA Shata, GREYDIN LIZ-CASTILLO,
AKA Sealed Defendant 44, AKA Pollito, NELSON
JORGE-MARTINEZ, AKA Sealed Defendant 45, AKA
Chico Chico, LUIS SALADIN, AKA Sealed Defendant
46, AKA King, CHRISTOPHER ROBLES, AKA Sealed
Defendant 47, AKA Dorita, JOSEPH HERNANDEZ,
AKA Sealed Defendant 48, JONATHAN
EVANGELISTA, AKA Sealed Defendant 49, HENRY
PAULINO, AKA Sealed Defendant 50, AKA Bam Bam,
JUAN FRANCO, LIMET VASQUEZ, ALEJANDRO
SORIANO, LENIN MOREL, RAMON LIZARDI,
LEWIS SANTOS, MIGUEL DELANCE, MARIA
MEJIA, JOSE MEJIA, JAVIER BELTRAN, MICHAEL
CABRERA, JULIAN LOPEZ, AKA Kulian Lopez,
CHRISTIAN NIEVES, YANDEL SILVERIO,
VLADAMIR DIAZ, ANDRY LAZALA, RAYMOND
SOSA, JOAN VASQUEZ, ARGENIS GUILLEN,
HERIBERTO MARTINEZ, ANDY CIPRIAN, ALBERT
SALCE, ANDERSON ABREU,

                     Defendants.



For Appellee United States:                        MATTHEW LAROCHE, Sarah Krissoff,
                                                   Margaret Garnett, Assistant United States
                                                   Attorneys, Of Counsel, for Joon H. Kim,
                                                   Acting United States Attorney for the
                                                   Southern District of New York, New York,
                                                   NY.

For Defendant-Appellant Manuel Geraldo:            GARY S. VILLANUEVA, Law Office of Gary
                                                   S. Villanueva, New York, NY.

For Defendant-Appellant Hargelis Vargas:           JOHN A. KUCHERA, Waco, TX.

For Defendant-Appellant Jugo Cespedes:             JAMES M. BRANDEN, Law Office of James
                                                   M. Branden, New York, NY.




       Consolidated appeals from final judgments of the United States District Court for the

Southern District of New York (Engelmayer, J.).

                                               3
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgments of the district court is AFFIRMED as to defendants-appellants

Geraldo and Cespedes, and REMANDED as to defendant-appellant Vargas.

       Co-defendants-appellants Manuel Geraldo, Hargelis Vargas, and Jugo Cespedes

(collectively, “defendants”) appeal from sentences and final judgments of conviction entered on

October 30, 2015, November 25, 2015, and December 3, 2015, respectively, each by the United

States District Court for the Southern District of New York (Engelmayer, J.). We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

       Each of the three defendants pleaded guilty to Count Two of the Superseding Indictment,

which charged them with participating in a racketeering conspiracy as members of the Bronx

Trinitarios Gang in violation of 18 U.S.C. § 1962(d). All three admitted that they participated in

the March 19, 2010, murder of Orlando Salgado; Geraldo and Cespedes also acknowledged

participating in the September 23, 2010, shooting and stabbing of members of a rival gang; and

Cespedes additionally admitted to participating in the March 27, 2010, murder of Richard

Canela. Prior to sentencing, the district court conducted a Fatico hearing, see United States v.

Fatico, 603 F.2d 1053 (2d Cir. 1979), to determine whether the Salgado murder constituted a

first- or second-degree murder for the purposes of calculating each defendant’s adjusted offense

level under the Guidelines. The court concluded that, while it was a close question, the murder of

Salgado was most appropriately considered a second-degree murder. In preparation for each

defendant’s sentencing hearing, the Probation Office calculated that all three defendants had

Criminal History Categories of I. In addition, the Probation Office calculated that Vargas’s total

offense level was 35 with a Guidelines range of 168 to 210 months’ imprisonment, and

Cespedes’s total offense level was 38 with a Guidelines range of 235 to 293 months. Although



                                                 4
the Probation Office calculated that Geraldo’s total offense level was 36 with a Guidelines range

of 188 to 235 months, the court at sentencing found that Geraldo’s total offense level was 37

with a Guidelines range of 210 to 262 months, consistent with the parties’ stipulation regarding

the appropriate Guidelines calculation. On October 29, 2015, the court sentenced Geraldo

principally to 320 months’ imprisonment. On November 24, 2015, the court sentenced Vargas

principally to 210 months’ imprisonment. On December 2, 2015, the court sentenced Cespedes

principally to 420 months’ imprisonment. Each defendant has timely appealed his sentence.

       On appeal, Geraldo contests both the procedural and the substantive reasonableness of his

sentence, while Cespedes contests only the substantive reasonableness of his sentence. We

review both the procedural and substantive reasonableness of a district court’s sentence for abuse

of discretion. See United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008).

       Vargas’s appeal is more complicated. In the course of challenging his sentence on appeal,

Vargas has raised a serious question as to whether the district court properly exercised subject-

matter jurisdiction over his case. In fairness to the district court — which at all times conducted

proceedings with great care and thoroughness — we note that this issue was first raised in

Vargas’s Reply Brief on appeal. Parties may not waive subject matter jurisdiction, however, so

“it is our obligation to raise the matter of subject matter jurisdiction ‘whenever it appears from

the pleadings or otherwise that jurisdiction is lacking.’” Durant, Nichols, Houston, Hodgson &

Cortese-Costa P.C. v. Dupont, 565 F.3d 56, 63 (2d Cir. 2009) (quoting John Birch Soc’y v. Nat’l

Broad. Co., 377 F.2d 194, 199 (2d Cir. 1967)). Accordingly, we must first be assured that the

district court properly exercised jurisdiction over Vargas’s case before the considering merits of

his appeal.




                                                 5
I. Geraldo’s Procedural Unreasonableness Challenge

        As to Geraldo’s procedural unreasonableness claim, a district court commits procedural

error when, among other things, it “fails to consider the [18 U.S.C.] § 3553(a) factors, selects a

sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.”

United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (per curiam) (internal quotation marks

omitted). In addition, the sentencing judge must “state in open court the reasons for its

imposition of [a] particular sentence.” 18 U.S.C. § 3553(c). Geraldo argues on appeal that “the

sentencing court refused to consider appellant’s persistent disability and, more importantly, its

impairment of his judgment.” Geraldo Br. 22. Contrary to Geraldo’s contention, the sentencing

judge did consider and discuss the significance of Geraldo’s learning disability. He noted that

“some degree of ADHD and related learning disabilities” were among the “real challenges in

[Geraldo’s] life” that provided “valuable context. . . . [that] helps me understand why [Geraldo]

joined the gang.” Geraldo App. 280–81. However, the sentencing judge found that those factors

were outweighed by the “seriousness of [Geraldo’s] offense, the savage murder of an innocent

man, followed not by refraining from violence, but by other acts of violence including an

attempted murder in which [he] did the stabbing.” Id. at 284. The sentencing judge carefully

considered the factors set forth in Section 3553(a) in the court’s sentencing explanation, which

spans over fifteen pages of the hearing transcript. On these bases, we conclude that Geraldo’s

sentence was not procedurally unreasonable.

II. Geraldo’s and Cespedes’s Substantive Unreasonableness Challenge

       Both Geraldo and Cespedes also argue that their sentences were substantively

unreasonable. Vacating a sentence on appeal because it was substantively unreasonable is

appropriate “only in exceptional cases where the trial court’s decision ‘cannot be located within



                                                 6
the range of permissible decisions.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)

(en banc) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). In imposing an

above-Guidelines sentence, the trial court “must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of the variance. . . . [A]

major departure should be supported by a more significant justification than a minor one.” Gall

v. United States, 552 U.S. 38, 50 (2007).

        As to the substantive reasonableness of Geraldo’s sentence, Geraldo argues that the

sentencing court’s “proffered justifications for its disproportionate variance are either

unsupported by the record or insufficient to locate the case outside the heartland.” Geraldo Br.

26. In the sentencing judge’s Fatico opinion, however, the judge found by a preponderance of

the evidence that the Salgado murder was “brutal” and “plainly indicative of a premeditated

attack,” that Geraldo had participated in murdering Salgado, and that Geraldo had subsequently

boasted to others that he had stabbed Salgado to death. Geraldo App. 95. Although the

sentencing judge acknowledged that the deterrent benefit of incapacitation “somewhat

diminishes the older [Geraldo] get[s],” Geraldo App. 280, the judge also recognized that Geraldo

“kept on committing acts of violence,” despite being “well aware that [he] could get caught,

arrested and prosecuted,” as “other members of the gang” were “getting arrested and going to

prison, but [he] kept on going.” Geraldo App. 278. Given the very serious nature of the violent

acts Geraldo admitted to committing as part of the racketeering conspiracy, Geraldo’s sentence

cannot be said to be substantively unreasonable.

        Neither was Cespedes’s sentence substantively unreasonable. On appeal, Cespedes

primarily argues that the sentencing judge’s above-Guidelines sentence was the result of

improperly using as the “closest comparators” to Cespedes two co-defendants who were tried



                                                   7
and convicted of multiple murders and who received mandatory life sentences, instead of using

Geraldo, whom Cespedes contends was more properly his closest comparator. However, the

sentencing judge rightly recognized the crucial difference between the activities of Geraldo and

Cespedes, insofar as the latter admitted to participating in a second murder only eight days after

the Salgado murder. The second victim, Canela, was murdered essentially because Cespedes and

other gang members “did not like the way a man . . . standing outside [a] store was looking at

them, and so they approached him and started assaulting him.” Cespedes App. 281 (quoting

Cespedes PSR ¶ 101). Indeed, Cespedes stabbed the victim to death with such force that the

blade of his knife broke from the handle in the process, and the victim was later found to have

died from approximately ten stab wounds. In light of these findings and the mandatory life

sentences imposed for the only other Trinitarios co-defendants to have been found responsible

for multiple murders at the time of Cespedes’s sentencing, Cespedes’s above-Guidelines

sentence cannot be said to be substantively unreasonable.

       Cespedes also contends that his sentence is unreasonable because the district court

improperly based his sentence on a disagreement concerning how the Guidelines’ grouping rules

would count the Canela murder. Although Cespedes purports to challenge the substantive

reasonableness of his sentence on this basis, such an argument is typically one of procedural

unreasonableness. See, e.g., United States v. Natal, 849 F.3d 530, 539 (2d Cir. 2017). In

sentencing Cespedes, the district court varied upward in its sentence in part because the Canela

murder added only one offense level to the Guidelines calculation. In the sentencing judge’s

view, that minor increase was insufficient to account for the fact that Cespedes committed a

second murder very shortly after participating in the murder of Salgado. This amounts to a policy

disagreement with the Guidelines, which is an appropriate reason to vary up or down from the



                                                 8
Guidelines recommendation. See Kimbrough v. United States, 552 U.S. 85, 101 (2007). Here, the

sentencing judge carefully described his policy disagreement with the grouping rules and amply

justified his reasons for finding the Guidelines recommendation insufficient on the facts of this

case.

III. Federal Subject Matter Jurisdiction over Vargas’s Case

        Finally, in Vargas’s Reply brief, Vargas contends that the only predicate acts in the

record that establish Vargas’s membership in the racketeering conspiracy — his participation in

the Salgado murder and his acknowledgment of his awareness that some members of the

Trinitarios gang sold drugs — both took place while he was a juvenile. If so, there is a serious

question as to whether the district court properly exercised subject matter jurisdiction over his

case, for the only predicate acts that establish Vargas’s membership in the racketeering

conspiracy would be acts of juvenile delinquency under the Juvenile Delinquency Act (“JDA”).

See 18 U.S.C. § 5031. “[I]n cases where a defendant commits a crime before his or her

eighteenth birthday and is under twenty-one at the time the juvenile information charging the

crime is filed,” the JDA requires either that the defendant’s prosecution proceed as a juvenile

prosecution — with a much attenuated regime of punishment — or that the district court

formally transfer a juvenile defendant to adult status. United States v. Ramirez, 297 F.3d 185,

191 (2d Cir. 2002). Even where the defendant turns twenty-one during the pendency of the

criminal proceedings, we have held that the JDA continues to apply. Id. at 191–92.

        Because Vargas was under the age of twenty-one at the time he was charged with the

racketeering conspiracy, if Vargas’s plea did not establish his adult participation in the

racketeering conspiracy, the district court would be required to comply with the JDA to exercise




                                                  9
jurisdiction over Vargas’s case. As to that procedure, as we explained at length in United States

v. Wong,

                 an act of juvenile delinquency may not be prosecuted in a federal
                 district court unless the Attorney General certifies to the court that:
                 (1) state courts either do not have or refuse to assume jurisdiction
                 over the juvenile; (2) the state does not have ‘available programs
                 and services adequate for the needs of juveniles;’ or (3) the offense
                 charged is a violent felony, or is one of several enumerated
                 narcotics- and firearm-related offenses, and there is a substantial
                 federal interest in the case or the offense to warrant the exercise of
                 federal jurisdiction.

40 F.3d 1347, 1363 (2d Cir. 1994) (citing 18 U.S.C. § 5032).1 When questioned at oral argument,

the Government did not assert that the Attorney General had fulfilled any of those prerequisites

to exercising jurisdiction, and neither we nor defense counsel could locate anything in the

appellate record suggesting otherwise. See Oral Arg. at 13:15.

        Here, the absence of the required certifications does not necessarily end the jurisdictional

inquiry, however, because racketeering conspiracy is a continuing crime. As we recognized in

Wong, “federal courts have jurisdiction over conspiracies begun while a defendant was a minor

but completed after his eighteenth birthday.” 40 F.3d at 1365. Nevertheless, the difficulty here is

that the record does not clearly establish that Vargas ratified the racketeering conspiracy after his

eighteenth birthday, on August 2, 2010. At Vargas’s plea hearing, Vargas only admitted to the

predicate acts of participating in the murder of Salgado on March 19, 2010, and that “[i]n March

2010, [he] was associated with the Bronx Trinitarios gang,” and affirmed that he was “aware of

the gang’s activities selling drugs,” specifically marijuana. Vargas Plea Hr’g 19–20. Although

Vargas’s PSR suggests that he may have been involved in burglaries with members of the

1
 Even in cases where the Attorney General submits this required certification, which confers jurisdiction upon the
district court, the government may only proceed against the defendant as an adult (instead of as a juvenile who is
entitled to additional procedural protections under the JDA) when the government moves to transfer the juvenile to
adult status, which can be either mandatory or discretionary depending on the circumstances. See Ramirez, 297 F.3d
at 191.

                                                       10
Trinitarios gang as late as 2012 (well after his eighteenth birthday), defense counsel objected to

the inclusion of those crimes in the PSR, see Vargas PSR at 35, and as Vargas’s counsel noted

during oral argument, no documentation in the record on appeal supports Vargas’s involvement

in those crimes, and they were not included in the criminal history portion of Vargas’s PSR. See

Oral Arg. at 17:10; Vargas PSR ¶¶ 148–55. Moreover, the district court did not make any

specific findings concerning the 2012 burglaries. For these reasons, the existing record on appeal

does not permit us to conclude, based solely on the references in the PSR, that the alleged

burglaries establish Vargas’s continued participation in the conspiracy after turning eighteen.

       However, we are not prepared to assume that Vargas’s continued membership in the

criminal enterprise may only be established by the commission of additional crimes after

reaching the age of majority. A defendant’s criminal liability for racketeering conspiracy does

not depend on the commission of a predicate criminal act, see Salinas v. United States, 522 U.S.

52, 63–66 (1997), and a defendant’s participation in a conspiracy is generally held to continue

until the conspiracy ends or the defendant affirmatively withdraws from it, see United States v.

Salmonese, 352 F.3d 608, 615 (2d Cir. 2003). At this juncture, however, we express no view as

to whether those rules apply in the context of adult ratification of juvenile participation in a

conspiracy, for we are not in a position to determine on the basis of the present record whether

jurisdiction existed in this case on the theory that Vargas’s participation in the charged

conspiracy continued into his majority.

       At this stage we believe this issue is best resolved by means of what is known in this

Circuit as a Jacobson remand, in which we remand “partial jurisdiction to the district court to

supplement the record on a discrete factual or legal issue while retaining jurisdiction over the

original appeal.” Corporación Mexicana De Mantenimiento Integral, S. De R.L. De C.V. v.



                                                 11
Pemex–Exploración Y Producción, 832 F.3d 92, 115 (2d Cir. 2016); see also United States v.

Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) (recognizing the authority of federal appellate courts to

seek “supplementation of a record without a formal remand or the need for a new notice of

appeal before the appellate panel acts on the supplemental record”). We direct the district court

to take the necessary steps, which may include a hearing, to determine whether it properly had

and retained jurisdiction over Vargas’s case under the JDA. If the district court does not find by a

preponderance of the evidence that Vargas’s participation in the charged conspiracy continued

after he turned eighteen, we direct the district court to vacate his conviction without prejudice for

lack of federal jurisdiction. See United States v. Ceja-Prado, 333 F.3d 1046, 1051–52 (9th Cir.

2003).

         We have considered all of Geraldo’s and Cespedes’s contentions on appeal and have

found in them no basis for reversal. We have also considered Vargas’s contention that his plea

allocution violated Federal Rule of Criminal Procedure 11, and similarly find that argument to be

without merit. For the reasons stated herein, the sentencing judgments of the district court as to

Geraldo and Cespedes are AFFIRMED. As to Vargas’s appeal, his sentence is REMANDED to

the district court pursuant to Jacobson, with instructions to take the necessary steps, which may

include a hearing, to determine whether it had and retained jurisdiction over Vargas’s case under

the Juvenile Delinquency Act. Upon resolution of that issue by the district court, either party

may restore the matter to the active docket of this Court by letter, without filing a new notice of

appeal. In the event either party seeks further action from this Court, the matter will be referred

to this panel.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk



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