         12-1954-cr
         United States v. Carrasco

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of March, two thousand and thirteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                RICHARD C. WESLEY,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges,
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                            Appellee,
16
17                      v.                                                          12-1954
18
19       MANUEL CARRASCO,
20
21                                            Defendant-Appellant.
22
23
24       FOR APPELLANT:                James F. Greenwald, Assistant Federal
25                                     Public Defender, James P. Egan, Research
26                                     & Writing Attorney, for Lisa A. Peebles,
27                                     Federal Public Defender for the Northern
28                                     District of New York, Syracuse, NY.
29
30       FOR APPELLEE:                 Carl G. Eurenius, Assistant United States
31                                     Attorney, Elizabeth S. Riker, Assistant
32                                     United States Attorney, for Richard S.
33                                     Hartunian, United States Attorney for the
34                                     Northern District of New York, Syracuse,
35                                     NY.
 1        Appeal from the United States District Court for the
 2   Northern District of New York (Suddaby, J.).
 3
 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

 5   AND DECREED that the judgment of the United States District

 6   Court for the Northern District of New York is AFFIRMED.

 7       Defendant-Appellant Manuel Carrasco-Mateo (“Carrasco”)

 8   appeals from a judgment by the United States District Court

 9   for the Northern District of New York (Suddaby, J.),

10   sentencing him to 56 months’ imprisonment for illegal re-

11   entry.   We assume the parties’ familiarity with the

12   underlying facts, the procedural history, and the issues

13   presented for review.

14       We apply a “‘deferential abuse-of-discretion standard’”

15   in reviewing sentences for procedural and substantive

16   unreasonableness.     See United States v. Pope, 554 F.3d 240,

17   244 (2d Cir. 2009) (quoting Gall v. United States, 552 U.S.

18   38, 52 (2007)).     We will find procedural error when, inter

19   alia, a district court “rests its sentence on a clearly

20   erroneous finding of fact” or “fails adequately to explain

21   its chosen sentence” – particularly if the court departs

22   from the Guidelines range.     United States v. Cavera, 550

23   F.3d 180, 190 (2d Cir. 2008) (en banc).     We will set aside a


                                     2
 1   district court’s sentence for substantive unreasonableness

 2   “only in exceptional cases where the trial court’s decision

 3   ‘cannot be located within the range of permissible

 4   decisions.’”   Id. at 189 (quoting United States v. Rigas,

 5   490 F.3d 208, 238 (2d Cir. 2007)).

 6       Here, we find that the district court did not abuse its

 7   discretion in imposing a sentence toward the top end of the

 8   Guidelines range of 46-57 months.    Carrasco argues that the

 9   district court committed procedural error by relying on

10   unproven elements of a pending state charge.    “A sentencing

11   court is not limited to considering only evidence of the

12   convicted offense [and] may take into account other relevant

13   conduct.”   United States v. Juwa, 508 F.3d 694, 700 (2d Cir.

14   2007).   We recognize, however, that “facts relevant to

15   sentencing must be found by a preponderance of the

16   evidence,” and that “an indictment or a charge within an

17   indictment, standing alone and without independent

18   substantiation, cannot be the basis upon which a criminal

19   punishment is imposed.”   Id. at 701.   In imposing its

20   sentence, the court supported its reasoning that Carrasco

21   “ha[dn’t] gotten the message” by referencing the pending

22   action, specifically, “the fact that there’s a conflict


                                   3
 1   where the police have to be called,” and the “severity” of

 2   an “altercation . . . with a weapon.”

 3       Certain aspects of the conduct leading to the state

 4   arrest were undisputed.   To the extent that the district

 5   court may have considered aspects of the pending charges

 6   that were not proven by a preponderance of the evidence, the

 7   court committed procedural error; however, any error was

 8   harmless.   See Fed. R. Crim. P. 52(a); United States v.

 9   Mason, 692 F.3d 178, 184 (2d Cir. 2012).       Carrasco’s

10   sentence fell within the expected range.       The court could

11   have considered Carrasco’s evasion of police to be

12   sufficiently serious, or even found the case completely

13   typical, and still sentenced Carrasco to 56 months.         See

14   Rita v. United States, 551 U.S. 338, 356-57 (2007).

15       Carrasco also challenges his sentence on the grounds of

16   substantive unreasonableness.       Our review merely “provide[s]

17   a backstop for those few cases [in which] . . . the sentence

18   imposed was shockingly high, shockingly low, or otherwise

19   unsupportable as a matter of law.”       United States v. Rigas,

20   583 F.3d 108, 123 (2d Cir. 2009).       While this Court has

21   declined to adopt the doctrine that a within-Guidelines

22   sentence is presumptively reasonable, “[w]e recognize that


                                     4
 1   in the overwhelming majority of cases, a Guidelines sentence

 2   will fall comfortably within the broad range of sentences

 3   that would be reasonable in the particular circumstances.”

 4   United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006).

 5   In imposing Carrasco’s within-Guidelines sentence, the

 6   district court cited its belief that Carrasco’s conduct

 7   “show[ed] a complete disregard or lack of respect for the

 8   laws of this country.”   Taking the relevant history as a

 9   whole, it cannot be said that the district court abused its

10   discretion because Carrasco repeatedly entered the country

11   illegally, was previously convicted of drug-trafficking, and

12   dangerously attempted to evade the police.     We find that the

13   district court’s sentence was “located within the range of

14   permissible decisions” and is thus substantively reasonable.

15    See Cavera, 550 F.3d at 189 (internal quotation marks

16   omitted).

17       Lastly, the potential applicability of the “Fast-Track”

18   downward departure program was not raised at the district

19   court by either the Government, defense counsel, or the

20   court and is therefore waived.    To the extent that Carrasco

21   raises an ineffective assistance of counsel claim, the

22   record before us is insufficient to make a determination.

23   We therefore decline to decide it on appeal.


                                   5
1       For the foregoing reasons, the judgment of the district

2   court is hereby AFFIRMED.

3
4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6

7




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