     10-4336-pr (L)
     United States v. Quinones


                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    RALPH K. WINTER,
10                    REENA RAGGI,
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       United States,
15                Appellee,
16                                                                10-4336-pr(L)
17                    -v.-                                        10-4362-pr(CON)
18                                                                10-4418-pr(CON)*
19       Anthony Velez, Felix Santiago,                           11-630-pr(CON)
20                Defendants-Appellants,
21
22       Alberto Quinones, Manuel Reyes, Jr.,
23                Defendants.
24       - - - - - - - - - - - - - - - - - - - -X
25
26       FOR DEFENDANT-APPELLANT SANTIAGO:                  Marjorie M. Smith,
27                                                          Piermont, NY.
28
29
30            * 10-4418-pr (Con) was dismissed by the order filed
31       July 19, 2011.


                                                  1
 1   FOR DEFENDANT-APPELLANT VELEZ:    Stanislao A. German, Law
 2                                     Office of Stanislao A.
 3                                     German, New York, NY.
 4
 5   FOR APPELLEE UNITED STATES:       Zachary Feingold (Katherine
 6                                     Polk Failla, on the brief),
 7                                     Assistant United States
 8                                     Attorney, for Preet
 9                                     Bharara, United States
10                                     Attorney, Southern District
11                                     of New York, New York, NY.
12
13       Appeal from a judgment of the United States District

14   Court for the Southern District of New York (Cote, J.).

15

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

17   AND DECREED that the judgment of the District Court is

18   AFFIRMED.

19

20       This appeal arises out of the prosecutions, guilty

21   pleas, convictions, and sentences of the two Defendants-

22   Appellants, Anthony Velez and Felix Santiago.    Velez appeals

23   his judgment of conviction on the grounds that the district

24   court erred in refusing to allow withdrawal of his guilty

25   plea.   Santiago appeals the length and one of the conditions

26   of his term of supervised release.   We assume the parties’

27   familiarity with the underlying facts, the procedural

28   history of the case, and the issues on appeal.

29



                                   2
1    [1] We review for abuse of discretion a district court’s

2    decision denying a motion to withdraw a guilty plea without

3    a hearing.    United States v. Doe, 537 F.3d 204, 211-12 (2d

4    Cir. 2008).    We affirm for substantially the same reasons

5    stated in the district court’s thorough and well-reasoned

6    decision.

7        Velez argues that the district court erred by failing

8    to hold an evidentiary hearing.    We disagree.    For the

9    purposes of deciding Velez’s motion to withdraw his plea,

10   the district court assumed the truth of Velez’s factual

11   assertions in concluding that he failed to establish “a fair

12   and just reason” for withdrawal of the plea.      Fed. R. Crim.

13   P. 11(d)(2)(B); see Doe, 537 F.3d at 210.       Moreover, during

14   his allocution, Velez affirmed that his plea was knowing and

15   voluntary and that he was satisfied with his representation.

16   These admissions are “a formidable barrier” to challenging

17   the validity of the plea because they “carry a strong

18   presumption of verity.”    Blackledge v. Allison, 431 U.S. 63,

19   74 (1977).    Velez has not overcome his own admissions.

20

21       Santiago raises two challenges to his order of

22   supervised release.    Neither is persuasive.

23   [2] Congress mandates a term of supervised release of at

24   least three years for a conviction for conspiracy to

                                    3
1    distribute and to possess narcotics with the intent to

2    distribute.   21 U.S.C. § 841(b)(1)(C).   The district court

3    did not abuse its discretion by imposing a five-year term of

4    supervision for Santiago.   See United States v. Cavera, 550

5    F.3d 180, 189 (2d Cir. 2008) (en banc) (identifying abuse of

6    discretion as the standard of review).

7        Judge Cote justified the five-year term of supervision

8    on the basis of Santiago’s substantial risk of recidivism.

9    The risk is considerable; Santiago had resumed essentially

10   the same criminal conduct upon his release from imprisonment

11   for crimes similar to those that resulted in his arrest and

12   conviction here.   Given his quick return to criminal

13   activity after his previous term of incarceration, his

14   Category V Criminal History, and the need to afford adequate

15   deterrence to Santiago and others, the district court did

16   not abuse its discretion in concluding that Santiago needs

17   more than the statutory minimum term of supervised release.

18   See 18 U.S.C. § 3583 (identifying factors to consider in

19   determining appropriate term of supervision).

20       Santiago contends that the district court was operating

21   under the erroneous assumption that the statutory minimum

22   term of supervision for Santiago’s conviction was five

23   years.   Santiago relies on a statement made during his plea

24   conference nearly three months before the sentencing

                                   4
1    hearing, and before the Pre-Sentencing Report, which

2    reflects the correct minimum term of supervision.   There is

3    no indication that the district court was influenced by any

4    such assumption.

5    [3] Santiago also challenges the district court’s

6    imposition of a special order of supervision that bars him

7    from incurring any new credit card charges or opening any

8    new credit lines without the permission of the Probation

9    Office.

10       “[T]rial courts traditionally have enjoyed broad

11   discretion to tailor the conditions of probation [i.e.,

12   supervised release] to the particular circumstances of each

13   case, provided that such conditions are reasonably related

14   to the dual goals of rehabilitating the offender and

15   protecting the public.”   United States v. A-Abras Inc., 185

16   F.3d 26, 30 (2d Cir. 1999).   A district court can impose a

17   special condition to the extent that such condition is

18   “reasonably related” to: (a) the nature and circumstances of

19   the offense and the history and characteristics of the

20   defendant; (b) the need for the sentence imposed to afford

21   adequate deterrence to criminal conduct; (c) the need to

22   protect the public from further crimes of the defendant; and

23   (d) the need to provide the defendant with needed

24   educational or vocational training, medical care, or other

                                   5
1    correctional treatment in the most effective manner.        18

2    U.S.C. § 3583(d)(1).    “A condition of supervised release

3    need only be reasonably related to any one of these

4    factors.”   United States v. Dupes, 513 F.3d 338, 344 (2d

5    Cir. 2008).   Any special condition of supervised release

6    must also be consistent with “pertinent policy statements

7    issued by the Sentencing Commission” and “involve[] no

8    greater deprivation of liberty than is reasonably

9    necessary.”   18 U.S.C. § 3583(d).

10       The Pre-Sentencing Report reported that Santiago has

11   substantial debt and virtually no legitimate means of

12   servicing his debt.     This suggests that Santiago’s debt was

13   incurred, in part, to finance his illegal activities and

14   that his inability to legitimately pay off the debt

15   increases the likelihood that he will resort to criminal

16   activity to service his debt.

17       Santiago argues that this type of condition is

18   unwarranted because no restitution or fine was imposed.          See

19   U.S.S.G. § 5D1.3(d)(2).     However, the condition can be

20   imposed in any case in which it may be appropriate.     See

21   U.S.S.G. § 5D1.3(d); see also 18 U.S.C. § 3583(d) (providing

22   that a district court can impose conditions it “considers to

23   be appropriate”).     The district court acted within its

24   discretion in imposing a special condition.

                                     6
1       We have considered all of the Defendants-Appellants’

2   remaining arguments and find them to be without merit.

3   Accordingly, the judgment of the District Court is affirmed.

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




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