11-14-cr
United States v. Guzman-Betancourt

                                    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, 500 Pearl Street, in the City of New York, on the 30th day
of January, two thousand twelve.

PRESENT:

          AMALYA L. KEARSE,
          JOSÉ A. CABRANES,
          ROBERT D. SACK,

                               Circuit Judges.
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UNITED STATES,

                               Appellee,

          v.                                                                               No. 11-14-cr

JUAN CARLOS GUZMAN-BETANCOURT,

                               Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:                                                 BARCLAY JOHNSON, Assistant Federal Public
                                                                         Defender (Steven L. Barth, Assistant Federal
                                                                         Public Defender, of counsel), for Michael L.
                                                                         Desautels, Federal Public Defender, Office of
                                                                         the Federal Public Defender, Burlington, VT.



                                                               1
FOR APPELLEE:                                             TIMOTHY C. DOHERTY, JR., Assistant United
                                                          States Attorney (Gregory L. Waples, Assistant
                                                          United States Attorney, of counsel), for Tristram
                                                          J. Coffey, United States Attorney for the
                                                          District of Vermont, Burlington, VT.

      Appeal from a judgment of the United States District Court for the District of Vermont (J.
Garvan Murtha, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Juan Carlos Guzman-Betancourt appeals from a thirty-month prison sentence imposed on
December 13, 2010, following his plea of guilty to one count of illegally reentering the United States
after having been previously deported. in violation of 8 U.S.C. § 1326(a).

         We review the reasonableness of a district court’s sentencing determinations under a
“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see generally
Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (“A district court has abuse[d] its discretion if it based
its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or
rendered a decision that cannot be located within the range of permissible decisions.”) (internal
citation and quotation marks omitted). “This form of appellate scrutiny encompasses two
components: procedural review and substantive review.” United States v. Cavera, 550 F.3d 180, 189
(2d Cir. 2008) (en banc). With respect to procedural error, we have explained that

                [a] district court commits procedural error where it fails to calculate the
                Guidelines range, . . . makes a mistake in its Guidelines calculation, or
                treats the Guidelines as mandatory. It also errs procedurally if it does
                not consider the [18 U.S.C.] § 3553(a) factors, or rests its sentence on
                a clearly erroneous finding of fact. Moreover, a district court errs if it
                fails adequately to explain its chosen sentence, and must include an
                explanation for any deviation from the Guidelines range.

Id. at 190 (internal quotation marks and citations omitted). With respect to substantive
reasonableness, “we will not substitute our own judgment for the district court’s on the question of
what is sufficient to meet the § 3553(a) considerations in any particular case.” Id. at 189. Rather, we
will only set aside a district court’s substantive determination “in exceptional cases where the trial
court’s decision cannot be located within the range of permissible decisions.” Id. at 189 (internal
quotation marks omitted).

                                                     I.
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         Guzman-Betancourt argues first that the District Court procedurally erred in imposing a
three-level upward departure in his criminal history category, from category III to category VI, in
light of his foreign criminal convictions. Specifically, the District Court added three levels to
Guzman-Betancourt’s criminal history category to account for a 2005 conviction in the United
Kingdom (“U.K.”) on two counts of burglary and another 2005 conviction in Ireland on one count
of burglary, and four counts of making a gain by deception.1 Guzman-Betancourt contends that
there was no reliable information sufficient to permit the consideration of these two convictions.

          As a preliminary matter, we note that the Government argues that this contention is subject
only to plain-error review because Guzman-Betancourt did not raise this reliability contention in the
District Court. Guzman-Betancourt contends that the issue was raised when he argued that “‘[a]
criminal history departure/variance is not warranted’” (Appellant’s Reply Br. at 10 (citing his
Sentencing Memorandum)) and when his attorney stated “we don’t really know the details” of
Guzman-Betancourt’s last “foreign conviction” and suggested that his 42-month sentence on that
conviction was for a “petty” offense. (See id. at 11). Neither the broad statement in the
memorandum that a criminal-history departure was unwarranted nor counsel’s profession of
ignorance as to the details of the U.K. conviction—a sentence fragment in the middle of counsel’s
argument that spanned some nine pages of transcript—was sufficient to “br[ing] to the [District
Court’s] attention,” Fed. R. Crim. P. 52(b), Guzman-Betancourt’s present contention that the
information concerning his foreign convictions was unreliable. Where a defendant “did not
specifically raise []his argument below,” he is not entitled to more than plain error review. United
States v. Rappaport, 999 F.2d 57, 59 (2d Cir. 1993).

         Regardless of the standard of review, however, it is clear in the present case that the District
Court committed no error, much less one that meets the plain-error standard, see generally Johnson v.
United States, 520 U.S. 461, 466-67 (1997); United States v. Olano, 507 U.S. 725, 732 (1993). A district
court may depart to a higher criminal history category “[i]f reliable information indicates that the
defendant’s criminal history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other crimes.”
U.S.S.G. § 4A1.3(a)(1). The Guidelines make clear that “reliable information” may include “[p]rior
sentence(s) not used in computing the criminal history category (e.g., sentences used for foreign and
tribal offenses).” Id. § 4A1.3(a)(2)(A). We review de novo whether a particular factor is a permissible
basis for a departure. United States v. Simmons, 343 F.3d 72, 78 (2d Cir. 2003).


        1
         Guzman-Betancourt was sentenced to forty-two months’ imprisonment on the burglary
counts in the United Kingdom, but escaped from Her Majesty’s Prison at Stanford Hill on June 6,
2005. Shortly thereafter, he was arrested in Ireland, and ultimately sentenced to two years on the
burglary count and eighteen months on the deception counts, to be served concurrently.
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        Guzman-Betancourt’s argument is virtually foreclosed by our decision in Simmons, where we
approved a district court’s upward departure under § 4A1.3(a)(1) based on foreign convictions. See
343 F.3d at 78–79. As in Simmons, the crimes for which Guzman-Betancourt was convicted in the
U.K. and Ireland—two common law countries with legal traditions similar to our own—are not
obscure. See id. at 79. Guzman-Betancourt, who was in the best position to describe the nature of
these offenses, never suggested that his foreign convictions “were something other than what they
seem,” id.—that is, for something other than burglary and fraud. Furthermore, based on the
sentences he received, it does not appear that these were merely “petty thefts and frauds,” as
Guzman-Betancourt characterizes them. There is, in short, no basis for his argument that the
information relating to his prior foreign convictions was unreliable. Accordingly, we conclude that
the District Court did not err, let alone plainly err, by considering these convictions in departing
upward.

                                                     II.

         Guzman-Betancourt also argues that the District Court procedurally erred by failing to
consider all of the sentencing factors under 18 U.S.C. § 3553(a) and failing to adequately explain its
chosen sentence. A sentencing court is required to “state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c) (2006). The primary interest served by
this requirement is “to ensure that district courts actually consider the statutory factors and reach
reasoned decisions.” Cavera, 550 F.3d at 193. “‘In determining whether the district court has
considered the appropriate factors, we do not require robotic incantations by the sentencing judge.
In the absence of record evidence suggesting otherwise, we presume that the district court has
faithfully discharged its duty to consider the § 3553(a) factors.’” United States v. Payne, 591 F.3d 46, 71
(2d Cir. 2010) (quoting United States v. Carr, 557 F.3d 93, 107 (2d Cir. 2009) (internal quotation marks
and citations omitted)).

       Nothing in the record suggests that the District Court failed to discharge its duty in this case.
To the contrary, the District Court clearly stated that it had considered the statutory factors and
concluded that a thirty-month sentence—that is, one higher than Guzman-Betancourt’s requested
sentence of time served, but well short of the Government’s request of the ten-year statutory
maximum—was “the appropriate sentence under the guidelines and also under Section 3553(a).”
The record of the sentencing hearing also makes clear that the District Court considered—and
accepted—Guzman-Betancourt’s arguments that he should be entitled to a two-level reduction for
acceptance of responsibility and that he had already been punished for many of the crimes he had
committed in the past. That the Court rejected Guzman-Betancourt’s other arguments in mitigation
does not mean that they were not considered.



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                                                   III.

        Finally, Guzman-Betancourt argues that the thirty-month sentence imposed by the District
Court was substantively unreasonable. A challenge to the substantive reasonableness of a sentence
“reduces to a single question: ‘whether the District Judge abused his discretion in determining that
the § 3553(a) factors supported’ the sentence imposed.” United States v. Jones, 531 F.3d 163, 170 (2d
Cir. 2008) (quoting Gall, 552 U.S. at 56). We will reverse a sentence based on substantive
unreasonableness only in those “few cases that, although procedurally correct, would nonetheless
damage the administration of justice because the sentence imposed was shockingly high, shockingly
low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
2009).

         Under this standard, we have no difficulty in concluding that the thirty-month sentence
imposed by the District Court, even though above the technical Guidelines range, was not
shockingly high. Guzman-Betancourt pleaded guilty to illegal reentry, having already been convicted
of this crime twice before and having been previously deported from the United States four times.
In 1996, he was sentenced to eighteen months’ imprisonment by a federal judge in Florida for illegal
reentry. In the time between that sentence and his arrest for illegal reentry in this case, Guzman-
Betancourt: (1) attempted to illegally reenter the United States, but was refused entry; (2) was
convicted in New York of grand larceny and jailed for nine months; (3) was convicted in the U.K.
for burglary and sentenced to 42 months imprisonment; (4) escaped from prison in the U.K.; (5) was
convicted of burglary and deception in Ireland and sentenced to two years’ imprisonment; (6) was
charged with property crimes in Las Vegas and Switzerland; and (7) illegally entered the United
States once again. It is clear that Guzman-Betancourt’s previous periods of incarceration have not
deterred him from a life of crime. Therefore, it was entirely reasonable for the District Court to
conclude that “there needs to be a ratcheting up [of the] sentence” from the eighteen-month
sentence he had received for his previous illegal-reentry conviction. In light of these facts, the
resulting thirty-month sentence was not “shockingly high . . . or otherwise unsupportable.” Rigas,
583 F.3d at 123.

                                          CONCLUSION

       We have considered all of Guzman-Betancourt’s arguments on appeal and find them to
be without merit. Accordingly, for the reasons stated above, we AFFIRM the sentence imposed
by the District Court.
                                            FOR THE COURT,
                                            Catherine O’Hagan Wolfe, Clerk of Court




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