     19-1639-cr
     United States v. Fuentes

                                  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 TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 23rd day of June, two thousand twenty.
 4
 5           PRESENT: PIERRE N. LEVAL,
 6                            RAYMOND J. LOHIER, JR.,
 7                            MICHAEL H. PARK,
 8                                    Circuit Judges.
 9           ------------------------------------------------------------------
10           UNITED STATES OF AMERICA,
11
12                              Appellee,
13
14                     v.                                                         No. 19-1639
15
16           MIGUEL FUENTES, AKA SEALED DEFENDANT 1,
17
18                            Defendant-Appellant.
19           ------------------------------------------------------------------
20
21
22
 1         FOR DEFENDANT-APPELLANT:                     James Matthew Branden, Law
 2                                                      Office of James M. Branden,
 3                                                      New York, NY.
 4
 5         FOR APPELLEE:                                Ni Qian, Karl Metzner,
 6                                                      Assistant United States
 7                                                      Attorneys, Of Counsel, for
 8                                                      Audrey Strauss, United States
 9                                                      Attorney for the Southern
10                                                      District of New York, New
11                                                      York, NY.

12

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

14   Southern District of New York (Kimba M. Wood, Judge).

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

16   AND DECREED that the judgment of the District Court is AFFIRMED.

17         Miguel Fuentes appeals from a judgment of conviction entered by the

18   District Court (Wood, J.) upon his plea of guilty to being a felon in possession of

19   a firearm, in violation of 18 U.S.C. § 922(g). Fuentes was sentenced principally to

20   a term of imprisonment of 70 months. On appeal, Fuentes argues that a defect in

21   the Information to which he pleaded guilty deprived the District Court of

22   jurisdiction to adjudicate his case, that in any event he did not knowingly and



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 1   voluntarily plead guilty, and that his sentence is substantively unreasonable. We

 2   assume the parties’ familiarity with the underlying facts and prior record of

 3   proceedings, to which we refer only as necessary to explain our decision to

 4   affirm.

 5         1. Jurisdictional Defect

 6         Fuentes first argues that the District Court lacked jurisdiction to adjudicate

 7   his case because the Information to which he pleaded guilty did not explicitly

 8   allege that Fuentes knew he was a convicted felon, as he says is required under

 9   Rehaif v. United States, 139 S. Ct. 2191 (2019). Fuentes’s argument is foreclosed

10   by United States v. Balde, 943 F.3d 73 (2d Cir. 2019), in which we held that the

11   charging instrument’s failure to allege the defendant’s knowledge of his status as

12   a convicted felon prohibited from possessing a firearm was not a jurisdictional

13   defect because the charging instrument “track[ed] the [statutory] language” and

14   included specific allegations as to the charged crime. Id. at 89–92. Here, the

15   Information also tracked the statutory language in § 922(g) and provided

16   specifics of the alleged crime. The District Court therefore had jurisdiction to

17   adjudicate Fuentes’s case.


                                              3
 1         2. Whether Fuentes’s Guilty Plea was Knowing and Voluntary

 2         Fuentes next argues that his guilty plea is void because the District Court

 3   did not provide adequate notice of the § 922(g) requirement that he knew he was

 4   a convicted felon at the time of the offense. Because Fuentes did not make this

 5   argument before the District Court, we review for plain error. See Fed. R. Crim.

 6   P. 52(b).

 7         To establish a violation under § 922(g), the Government was required to

 8   prove beyond a reasonable doubt that Fuentes knew that he was a convicted

 9   felon. Rehaif, 139 S. Ct. at 2200. Although Fuentes should have been advised

10   that knowledge of his felony status was an element of the offense to which he

11   was pleading guilty, see Balde, 943 F.3d at 96, we conclude that Fuentes has not

12   demonstrated that the error “affected [his] substantial rights and that there is a

13   reasonable probability that, but for the error, he would not have entered the

14   plea.” Id. (quotation marks omitted). During the plea proceeding, when asked

15   why he was guilty under § 922(g), Fuentes replied, “I had a weapon possessed in

16   my possession and I am a prior felon. I know it was against the law.” App’x 31.

17   Fuentes also acknowledged that he had previously been convicted of a crime


                                              4
 1   punishable by a sentence of at least one year. And in 2009 Fuentes had in fact

 2   been convicted in Massachusetts of possession with intent to distribute a

 3   controlled substance and was sentenced to 30 months’ imprisonment. For these

 4   reasons, we discern no reasonable probability that but for the error, Fuentes

 5   would not have entered the plea. Balde, 943 F.3d at 96.

 6         3. Substantive Reasonableness

 7         We will “set aside a district court’s substantive determination only in

 8   exceptional cases where the trial court’s decision cannot be located within the

 9   range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d

10   Cir. 2008) (en banc) (quotation marks omitted). Fuentes argues that his sentence

11   was substantively unreasonable primarily because the District Court failed to

12   account for mitigating factors and inflated the seriousness of his offense. We are

13   not persuaded. In imposing the sentence, the District Court adequately

14   considered several factors in Fuentes’s favor, such as his familial support and his

15   determination to “turn over a new leaf.” App’x 136. The District Court

16   explained that it had carefully considered all of the letters and articles submitted

17   by Fuentes, his relatives, and his counsel. In assessing the severity of the offense,


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1   furthermore, the District Court considered Fuentes’s lengthy criminal history

2   and the fact that Fuentes, a convicted felon, had a loaded gun. We therefore

3   reject Fuentes’s argument that his sentence was substantively unreasonable.

4         We have considered Fuentes’s remaining arguments and conclude that

5   they are without merit. For the foregoing reasons, the judgment of the District

6   Court is AFFIRMED.

7                                        FOR THE COURT:
8                                        Catherine O=Hagan Wolfe, Clerk of Court




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