09-3523-cr
USA v. Aguilar-Torres


                           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, at 500 Pearl Street, in the City of New York,
on the 1st day of December, two thousand ten.

Present:    RALPH K. WINTER,
            GUIDO CALABRESI,
            ROBERT A. KATZMANN,
                             Circuit Judges.

____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                           No. 09-3523-cr

JESUS AGUILAR-TORRES,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                         Colleen P. Cassidy, Federal Defenders of New
                                                 York, Inc., Appeals Bureau, New York, N.Y.

For Appellee:                                    James J. Pastore, Jr., Assistant United States
                                                 Attorney (Katherine Polk Failla, Assistant
                                                 United States Attorney, on the brief), for Preet
                                                 Bharara, United States Attorney for the
                                                 Southern District of New York, New York, N.Y.
        Appeal from the United States District Court for the Southern District of New York
(Baer, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Jesus Aguilar-Torres appeals from a judgment of conviction in the

United States District Court for the Southern District of New York (Baer, J.), entered August 6,

2009, following his entry of a plea of guilty to one count of illegally reentering the country

following deportation in violation of 8 U.S.C. § 1326. The district court sentenced Aguilar-

Torres principally to 36 months’ imprisonment. On appeal, Aguilar-Torres challenges his

sentence as procedurally unreasonable, asserting that the district court misapprehended its

authority to grant a downward departure under Application Note 7 of § 2L1.2 of the United

States Sentencing Guidelines. We assume the parties’ familiarity with the remaining facts and

procedural history of this case.

       A district court commits procedural error if it misapprehends “the availability of

departure authority.” United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005). “In the

absence of ‘clear evidence of a substantial risk that the judge misapprehended the scope of his

departure authority,’ we presume that a sentenc[ing] judge understood the scope of his authority.”

United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (quoting United States v. Gonzalez,

281 F.3d 38, 42 (2d Cir. 2002)). However, if a judge’s “remarks create ambiguity as to whether

the judge correctly understood an available [sentencing] option,” the appellate court should

“remand for clarification,” unless “the record indicated clearly that the district court would have

imposed the same sentence had it had an accurate understanding of its authority.” United States



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v. Sanchez, 517 F.3d 651, 665 (2d Cir. 2008) (alteration in original) (internal quotation mark

omitted).

        The district court’s Guidelines calculations included a 16-level increase to the base

offense level because Aguilar-Torres had been previously deported after conviction for a felony

that is a “crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Aguilar-Torres requested a

downward departure pursuant to Application Note 7 on the ground that his “crime of violence”

did not meet the definition of an aggravated felony at 8 U.S.C. § 1101(a)(43) because the

sentence for his felony conviction was not for more than one year of imprisonment. See U.S.S.G.

§ 2L1.2 cmt. n.7. The district court responded:

        [T]he 16 level enhancement really does seem a little outrageous to me. . . . [I]t seems like

        maybe I just need to understand a little more about how the guidelines came to -- the

        Commission came to that conclusion. But I don’t expect you’re going to give me any --

        in any event, I mean if we look at the guidelines from a simply orthodox viewpoint, there

        is nothing wrong with these guidelines, and the offense level seems appropriate under the

        circumstances as does the criminal history category.

A. 50-51.

        Here, the district court questioned why the Guidelines impose an enhancement of 16

levels for a prior conviction for a “crime of violence,” but it ultimately concluded that the offense

level did not substantially overstate the severity of Aguilar-Torres’s prior conviction. The district

court’s remarks were sufficient acknowledgment of its authority to grant the downward

departure, since a district court need not “by robotic incantations state ‘for the record’ . . . that

they are aware of this or that arguable authority to depart but that they have consciously elected


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not to exercise it.” United States v. Brown, 98 F.3d 690, 694 (2d Cir. 1996). Having declined to

exercise the departure authority under Application Note 7, the district court nevertheless granted

a downward variance and imposed a below-Guidelines sentence based on the factors under 18

U.S.C. § 3553(a). We conclude, therefore, that the district court’s remarks lack the ambiguity

that would warrant remand for clarification. See Sanchez, 517 F.3d at 665. Even assuming,

arguendo, the district court’s remarks evinced some ambiguity, remand would not be appropriate

because the district court, having granted a variance, would impose the same sentence. Id.

       We have considered Aguilar-Torres’s remaining arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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