12-3329-cr
U.S. v. Escobar


                       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 October, two thousand thirteen.

PRESENT:    GERARD E. LYNCH,
            SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                              Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                  v.                                                   No. 12-3329-cr

LUIS ESCOBAR, also known as “Curramba,” “Amaretto,”

                                   Defendant-Appellant,


LUIS HERNANDO GOMEZ BUSTAMENTE, also known
as “Rasguno,” ARCANGEL DE JESUS HENAO
MONTOYA, also known as “El Mocho,” ORLANDO
SABOGAL ZULUAGA, also known as “El Mono
Sabogal,” “Caraqueso,” “Alberto Sabogal,” JAIME MAYA
DURAN, also known as “Alejandro,” JHONNY CANO
CORREA, also known as “Flechas,” “Santiago,”
ALDEMAR RENDON, also known as “Mechas,” JOSE
DAGOBERTO FLORE RIOS, also known as “Chuma,”
GILBERTO SANCHEZ MONSALVE, also known as
“Vitamina,” ABELARDO ROJAS, also known as “El
Mono,” JUAN CARLOS GIRALDO FRANCO, also
known as “Tortuga,” DAVINSON GOMEZ O’CAMPO,
also known as “Gordo,” JAIME ROJAS FRANCO,
MARTA AGUDELO CASTANO, also known as “Marta
Cano,” JULIA AGUDELO CASTANO, CARLOS
ALBERTO GOMEZ, also known as “El Nino,” “Cejas,”
JOSE LUIS VALLEJO, ARIEL RODRIGUEZ, also known
as “El Diablo,” JUAN CARLOS PATINO RESTREPO,
also known as “Patemuro,” GABRIEL VILLANUEVA,
also known as “Truchi,” HECTOR ALONSO SALAZAR
MALDONADO, also known “Tornillo,” JAIR RENDON,
also known as “Negro Jair,” PEDRO BERMUDEZ, also
known as “El Arguiticto,”


                                     Defendants.*
_________________________________________


FOR APPELLANT:                ALESSANDRA DEBLASIO, ESQ., New York, New York.


FOR APPELLEE:                 ALLEN L. BODE, Assistant United States Attorney (David C.
                              James, Assistant United States Attorney, on the brief), for Loretta
                              E. Lynch, United States Attorney for the Eastern District of New
                              York, Brooklyn, New York.


       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Joanna Seybert, Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Luis Escobar appeals from the district court’s sentence of 150

months’ imprisonment and five years of supervised release following his guilty plea to


       *
        The Clerk of Court is respectfully directed to amend the official caption in this case to
conform with the caption above.

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conspiracy to distribute and import at least five kilograms of cocaine in violation of 21 U.S.C.

§ 963. On appeal, Escobar argues that his sentence was both substantively and procedurally

unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal.

       We review a district court’s sentence to ensure that it is both procedurally and

substantively reasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

A district court errs procedurally by, among other things, miscalculating the applicable

sentencing guideline range, considering conduct that is irrelevant under the applicable

guidelines, or giving insufficient consideration of the factors set out in 18 U.S.C. § 3553(a). Id.

at 190. A district court’s sentence is substantively unreasonable only if it “cannot be located

within the range of permissible decisions.” Id. at 189 (internal quotation marks omitted).

       Escobar argues that his sentence was procedurally unreasonable for two reasons. First,

he argues that the district court erred by deeming a narcotics conviction over fifteen-years old

relevant to his ultimate sentence. A district court has broad discretion to consider a defendant’s

background when constructing an appropriate sentence. This includes his past convictions. To

be sure, the United States Sentencing Guidelines limit the types of past convictions that

contribute to a defendant’s criminal history score. See U.S.S.G. § 4A1.2. But no such

restriction applies to a court’s assessment of the factors listed in 18 U.S.C. § 3553. Thus, when a

sentencing court turns from calculating a guideline range to determining a sentence, it may

consider any information “concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” United States v. Broxmeyer, 699 F.3d 265, 268


                                                 3
(2d Cir. 2012) (quoting 18 U.S.C. § 3661). The district court believed that Escobar’s narcotics

conviction raised his risk of recidivism, and it acted within its authority when it decided that

such a risk called for a harsher punishment.1

       Second, Escobar argues that the district court erred by refusing to impose a sentence

similar to those received by other members of the same conspiracy. Under 18 U.S.C. §

3553(a)(6), courts must consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.” Although a

sentencing court must consider sentencing disparities when deciding upon an individual’s

sentence, nothing requires the court to value this factor above all others. The district court

acknowledged that Escobar was receiving a higher sentence than his co-defendants, but

determined that the unique circumstances of his case merited a longer period of incarceration.

       Escobar next argues that his sentence was substantively unreasonable. But the district

court’s sentence of 150 months’ imprisonment was below the recommended guidelines range of

292 to 365 months, and thus was well within the range of sentences imposed for similar conduct.

Under these circumstances, we cannot conclude that the district court abused its discretion in

imposing a sentence well below the bottom of the guidelines recommended range.




       1
         Escobar argues that the district court’s use of the word “require” in stating its
conclusion that the prior conviction was relevant to sentencing implies that it did not know it had
the discretion to put that conviction aside. Read in context, however, the district court’s choice
of words suggests the opposite: The court noted that “even if” Escobar’s sentence was too old to
impact his criminal history score under the guidelines, the conviction still “appear[ed] to the
court” to be “something that would require a more punitive sentence.” In other words, the court
correctly explained the distinction between a mandatory calculation under the guidelines, and a
discretionary judgment regarding a final sentence.

                                                  4
       Finally, Escobar argues that the district court erred in refusing to consider his motion to

correct his sentence pursuant to Federal Rule of Criminal Procedure 35(a). Escobar’s Rule 35

motion asserted arguments identical to those he makes on appeal. As our circuit has noted, Rule

35 “is intended to be very narrow and to extend only to those cases in which an obvious error or

mistake has occurred.” United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995) (quoting

Fed. R. Crim. P. 35 advisory committee note). Even assuming that Escobar’s arguments could

appropriately be raised on a Rule 35 motion – a proposition we find highly doubtful – the district

court did not err in determining that the very arguments we have rejected above as meritless did

not demonstrate any “obvious error or mistake” in his sentence.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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