06-3614-cr
USA v. Negron (Silverio)



 1                          UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2007
 6
 7
 8    (Argued: April 1, 2008                     Decided: April 24, 2008)
 9
10                              Docket No. 06-3614-cr
11
12    - - - - - - - - - - - - - - - - - - - -X
13
14    UNITED STATES OF AMERICA,
15
16                Appellee,
17
18                - v.-
19
20    JOSE NEGRON, RAFAEL GONZALES, ANGEL
21    MALDONADO, ALEXIS PRATTS, CHRISTIAN
22    SILVERIO, JOHN RODRIGUEZ, LIONEL
23    PINEIRO,
24             Defendants,
25
26    JULIO SILVERIO, 1
27             Defendant-Appellant
28
29    - - - - - - - - - - - - - - - - - - - -X
30

31          Before:        JACOBS, Chief Judge, KEARSE and POOLER,
32                         Circuit Judges.
33
34          Julio Silverio appeals from an order of the United



            1
            We direct the Clerk of the Court to amend the official
      caption to reflect this spelling of Silverio’s name.
1    States District Court for the Eastern District of New York

2    (Weinstein, J.), declining to resentence him after a Crosby

3    remand.   Silverio argues that the district court erred in

4    refusing to consider the terms of a rejected plea offer in

5    which the government had offered to recommend a lower

6    sentence.     For the following reasons, we affirm.

 7                                 LAWRENCE MARK STERN, New York,
 8                                 NY, for Defendant-Appellant.
 9
10                                 JEFFREY H. KNOX, Assistant
11                                 United States Attorney (Susan
12                                 Corkery, Assistant United States
13                                 Attorney, on the brief), for
14                                 Benton J. Campbell, United
15                                 States Attorney for the Eastern
16                                 District of New York, Brooklyn,
17                                 NY, for Appellee.
18
19   PER CURIAM:

20       Julio Silverio appeals from an order entered on August

21   2, 2006, in the United States District Court for the Eastern

22   District of New York (Weinstein, J.), declining to

23   resentence him after remand pursuant to United States v.

24   Crosby, 397 F.3d 103 (2d Cir. 2005).    Silverio’s sole

25   argument on this appeal is that the district court

26   erroneously refused to consider the terms of a rejected plea

27   offer in which the government had offered to recommend a

28   lower prison term than ultimately imposed.    We affirm


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1    because nothing in 18 U.S.C. § 3553(a) or controlling

2    precedent requires a sentencing court to consider a rejected

3    plea offer.

4        Silverio was one of the ringleaders of a criminal gang

5    that engaged in a series of home and business robberies over

6    an 18-month period.     The victims, including families with

7    small children, were held hostage and threatened and

8    terrorized at gunpoint until cash and valuables were turned

9    over.   During plea negotiations, the government expressed

10   willingness to enter an agreement under Fed. R. Crim. P.

11   11(e)(1)(C) (2000), which would include a binding sentence

12   recommendation of 17 years’ imprisonment--notwithstanding an

13   estimated Sentencing Guidelines range of approximately 22 to

14   27 years.     Against counsel’s advice, Silverio rejected this

15   offer, believing he might obtain greater leniency from the

16   sentencing judge.     Silverio later accepted a plea agreement

17   that contained no binding sentence recommendation.     Pursuant

18   to that agreement, he was convicted of kidnapping in aid of

19   racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and

20   (2), conspiracy to commit robbery in violation of 18 U.S.C.

21   § 1951, and use of a firearm in furtherance of crimes of

22   violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and



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1    (2).     He was sentenced principally to 272 months of

2    incarceration.

3           Silverio’s initial appeal argued (inter alia) that the

4    district court erred in restricting a downward departure for

5    diminished capacity to a single level.     By summary order

6    dated May 21, 2004, this Court affirmed the sentence,

7    specifically finding each of Silverio’s arguments without

8    merit.     See United States v. Negron, 96 F. App’x 788 (2d

9    Cir. 2004) (unpublished), vacated on other grounds sub nom.

10   Silverio v. United States, 543 U.S. 1102 (2005).

11   Subsequently, the Supreme Court vacated that summary order

12   and remanded in light of United States v. Booker, 543 U.S.

13   220 (2005); and this Court remanded to the district court

14   for a Crosby review.     See United States v. Silverio, No. 01-

15   1210 (2d Cir. Nov. 15, 2005) (unpublished).     However, our

16   May 21, 2004 decision as to the arguments presented in the

17   initial appeal was explicitly made part of our November 15,

18   2005 remand order to the extent it was consistent with

19   Crosby, and thus remains the law of the case.     See United

20   States v. Williams, 475 F.3d 468, 475-76 (2d Cir. 2007).

21          On appeal from the district court’s decision following

22   the Crosby remand, Silverio argues that:     (a) his rejection



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1    of the earlier plea offer was a manifestation of his

2    diminished capacity at the time; and (b) the rejected offer

3    was an acknowledgment by the government that a lesser

4    sentence would have been sufficient.   We review a sentence

5    for reasonableness, under an abuse-of-discretion standard,

6    see Gall v. United States, 128 S. Ct. 586, 594 (2007),

7    including when the district court has declined to resentence

8    pursuant to Crosby, see Williams, 475 F.3d at 474. Insofar

9    as Silverio is asserting an error in the extent of the

10   downward departure for diminished capacity in the original

11   sentence, the argument is barred by the law of the case

12   doctrine because it was adjudicated on his direct appeal.

13   See United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir.

14   2002).

15       “The law of the case doctrine will not, however, bar a

16   defendant who is not resentenced after a Crosby remand from

17   challenging the procedures used by the district court during

18   the Crosby remand.”   Williams, 475 F.3d at 476.   Here, the

19   district court fully complied with Crosby’s procedural

20   requirements, including appropriate consideration of the

21   factors set forth in 18 U.S.C. § 3553(a).   Nothing in §

22   3553(a) or controlling precedent requires a district court


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1    to consider a rejected plea offer.   See Rita v. United

2    States, 127 S. Ct. 2456, 2465 (2007) (“[The sentencing

3    judge] may hear arguments by prosecution or defense that the

4    Guidelines sentence should not apply . . ..” (emphasis

5    added)); cf. United States v. Hamdi, 432 F.3d 115, 124 (2d

6    Cir. 2005) (noting “the well-settled legal principle that

7    ‘the sentencing judge is of course not bound by the

8    estimated range’ in a plea agreement” (quoting United States

9    v. Rosa, 123 F.3d 94, 98-99 (2d Cir. 1997))).

10       In any event, the record shows that during the Crosby

11   remand, defense counsel was given full opportunity to make

12   this argument.   “[W]e entertain a strong presumption that

13   the sentencing judge has considered all arguments properly

14   presented to [him], unless the record clearly suggests

15   otherwise.   This presumption is especially forceful when, as

16   was the case here, the sentencing judge makes abundantly

17   clear that [he] has read the relevant submissions and that

18   [he] has considered the § 3553(a) factors.”   United States

19   v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006).   The

20   sentencing decision carefully applied the § 3553(a) factors

21   to Silverio’s case, and specifically considered the kinds of

22   sentences available and the location of the sentence within


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1    the Guidelines range.   The district court declined to

2    resentence Silverio, in large part because of the

3    “horrendous” and “serious” nature of the offense.    See id.

4    at 27 (“[I]n the overwhelming majority of cases, a

5    Guidelines sentence will fall comfortably within the broad

6    range of sentences that would be reasonable in the

7    particular circumstances.”).   In doing so, the district

8    court committed no procedural or substantive error.

9

10                            CONCLUSION

11       For the foregoing reasons, the order of the district

12   court is affirmed.




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