12-1214-cr
United States v. Rodriguez




                                 UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT


                                              August Term, 2012

                             (Submitted: April 25, 2013       Decided: May 15, 2013)

                                            Docket No. 12-1214-cr


                                         UNITED STATES OF AMERICA,

                                                                    Appellee,

                                                   — v. —

    EDUARDO RODRIGUEZ, also known as EDUARDO RODRIGUEZ-NUNEZ, also known as
              EDWARDO RODRIGUEZ, also known as RAFAEL FLORES,

                                                                    Defendant-Appellant.


B e f o r e:

                               WINTER, CALABRESI, and LYNCH, Circuit Judges.

                                             __________________

          Defendant-appellant Eduardo Rodriguez appeals from a judgment of conviction

entered on March 23, 2012, following his guilty plea in the United States District Court

for the Southern District of New York (Leonard B. Sand, Judge). Rodriguez pled guilty

to illegally reentering the United States following a conviction for an aggravated felony in


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violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and was sentenced to 57 months’

imprisonment, to run consecutively to an undischarged term of imprisonment for

narcotics convictions in the state of Virginia. On appeal, Rodriguez challenges his

sentence as substantively unreasonable. Because we do not find the sentence

unreasonable, we affirm the district court’s judgment.

       AFFIRMED.

       Judge LYNCH concurs in the opinion of the Court, and files a concurring opinion.



              JULIA PAMELA HEIT, New York, New York, for defendant-appellant.

              ALEXANDER J. WILSON, Assistant United States Attorney (Andrew Fish, on
                   the brief), for Preet Bharara, United States Attorney for the Southern
                   District of New York, New York, New York, for appellee.



PER CURIAM:

       Defendant-appellant Eduardo Rodriguez appeals from a judgment of conviction

entered on March 23, 2012, in the United States District Court for the Southern District of

New York (Leonard B. Sand, Judge) on his guilty plea to illegally reentering the United

States after deportation following a conviction for an aggravated felony in violation of 8

U.S.C. §§ 1326(a) and 1326(b)(2). The district court imposed a term of 57 months’

imprisonment, to run consecutively to an undischarged term of imprisonment that

Rodriguez was serving in connection with narcotics convictions in the state of Virginia.

In this appeal, Rodriguez challenges his sentence as substantively unreasonable.

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       “We review the reasonableness of a district court’s sentence under a deferential

abuse of discretion standard . . . .” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir.

2010). This review “encompasses two components: procedural review and substantive

review.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Where the

district court’s sentencing decision is procedurally sound, we then consider whether the

sentence was substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).

“[W]hen conducting substantive review, we take into account the totality of the

circumstances, giving due deference to the sentencing judge’s exercise of discretion, and

bearing in mind the institutional advantages of district courts.” Cavera, 550 F.3d at 190.

Only 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), will we set

aside a district court’s substantive determination. “In the overwhelming majority of

cases, a Guidelines sentence will fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances.” United States v. Perez-Frias, 636

F.3d 39, 43 (2d Cir. 2011) (internal quotation marks and bracket omitted).

       Rodriguez argues that the district court’s refusal to impose a concurrent or partially

concurrent sentence renders his 57-month Guidelines sentence substantively

unreasonable. We disagree. The Guidelines provide that, when a defendant is already

serving an undischarged term of imprisonment, “the sentence for the instant offense may

be imposed to run concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable punishment for the instant

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offense.” U.S.S.G. § 5G1.3(c). That guideline “generally vests broad discretion in the

sentencing court,” United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999), and instructs

district courts to consider a range of factors in deciding whether a sentence should run

concurrently or consecutively to an existing sentence, including the 18 U.S.C. § 3553(a)

factors, and “any other circumstance relevant to the determination of an appropriate

sentence,” U.S.S.G. § 5G1.3 app. n.3. See United States v. McCormick, 58 F.3d 874, 878

(2d Cir. 1995) (noting that the court should “consider the basic principle that a

consecutive sentence should be imposed to the extent that it will result in a reasonable

incremental penalty”) (internal quotation marks omitted). “A district court’s sentencing

decisions under § 5G1.3(c) will not be overturned absent an abuse of discretion.” United

States v. Matera, 489 F.3d 115, 124 (2d Cir. 2007) (brackets and internal quotation marks

omitted).

       The district court imposed Rodriguez’s 57-month sentence to run consecutively to

his existing sentence after considering Rodriguez’s history, characteristics, and the goals

of sentencing, most notably, deterrence. These are permissible factors for a district court

to consider under § 5G1.3(c), which permits the consideration of the factors listed under

18 U.S.C. § 3553(a), including “the history and characteristics of the defendant” and “the

need . . . to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a). We

therefore conclude that the district court acted well within its discretion in imposing the

sentence to run consecutively to the state sentence.



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      We have considered all of Rodriguez’s remaining arguments and find them to be

without merit.

      For the foregoing reasons, the judgment of the district court is AFFIRMED.




                                          5
GERARD E. LYNCH, Circuit Judge, concurring:

       I fully join the per curiam opinion because I agree that the sentence imposed in this

case is not substantively unreasonable. I write separately, however, to call attention to a

framework available to district court judges deciding whether to impose a term of

imprisonment that runs consecutively, concurrently, or partially concurrently to an

undischarged state sentence, which does not appear to have been considered either by

defense counsel or by the district court, and which was not cited by appellant to this

Court. It is my view that in exercising the discretion provided by U.S.S.G. § 5G1.3(c),

district judges might well want to consider the sentence that they would impose if the

crime of conviction and the crime underlying the undischarged term of imprisonment had

both been prosecuted simultaneously in federal court.

       The problem of concurrent or consecutive sentences is a vexing one in any

guideline system that attempts to recommended sentences for various offenses that are

tied primarily to the seriousness of the offense conduct. As the United States Sentencing

Guidelines have recognized from the outset, “[t]he difficulty is that when a defendant

engages in conduct that causes several harms, each additional harm, even if it increases

the extent to which punishment is warranted, does not necessarily warrant a proportionate

increase in punishment.” U.S.S.G. ch.1, pt. A, introductory cmt. 4(e). The Commission

gave an example: “A defendant who assaults others during a fight . . . may warrant more

punishment if he injures ten people than if he injures one, but his conduct does not

necessarily warrant ten times the punishment.” Id. The Guidelines thus provide an

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admittedly imperfect set of rules, commonly referred to as the “grouping rules,” for

addressing the problem of providing “an appropriate degree of aggravation of punishment

for multiple offenses that are the subjects of separate counts.” Id.; see U.S.S.G. ch. 3, pt.

D.

       The problem of whether a federal sentence for an additional crime should run

concurrently, consecutively, or partially consecutively to an existing undischarged

sentence is analogous. Here, too, the problem is whether the punishment for two distinct

offenses should be the total of the punishments that might be appropriate for the two

offenses considered separately, or something less. In many cases, by virtue of the mere

fact that one crime was prosecuted in the state system and the other federally, or because

one crime was only detected after the earlier one was fully prosecuted, the grouping rules

do not apply as they would had both crimes been prosecuted simultaneously in the federal

system. For a defendant such as this one, applying the grouping rules to determine what

incremental punishment those rules would have provided if the defendant had been

prosecuted simultaneously in federal court for both offenses could provide useful

information about the degree to which it is appropriate to impose a sentence that is only

partially consecutive.

       In this case, Rodriguez had already been prosecuted for narcotics offenses in the

state courts of Virginia, and received an effective sentence of nine years (108 months).1


       1
       Rodriguez was actually sentenced to 31 years of imprisonment, 22 of which were
suspended. The parolable nature of sentences in many states is a complicating factor for any

                                              2
In deciding to impose a fully consecutive sentence, the district court imposed an

additional 57-month sentence, such that Rodriguez will presumably serve a total of 165

months. Given the sparsity of the information available in this record, it is impossible to

determine precisely how Rodriguez would have fared had both offenses been charged in

the same federal indictment. We do not know enough about the nature of the state

narcotics offenses for which he was serving a sentence to determine the guideline

calculation for that offense, and such a calculation is an essential step in applying the

multiple-count analysis under the federal Guidelines. But we can have some confidence

that if Rodriguez had been prosecuted simultaneously in federal court for his immigration

violation and for a narcotics offense that would yield a guideline recommendation of 108

months, his total recommended sentence would probably have been significantly lower

than 165 months.

       We know this because the Sentencing Commission’s approach, as discussed

above, was designed to yield something less than fully consecutive sentences for multiple

counts prosecuted together. See U.S.S.G. ch. 1, pt. A, introductory cmt. 4(e). A

rudimentary version of the mechanics by which that approach was implemented,

oversimplifying the analysis by disregarding questions of criminal history category and

reductions of final offense levels for acceptance of responsibility, confirms that

conclusion. Under U.S.S.G. § 3D1.1(a), the district court would be instructed to (1)



court attempting to determine the practical effect of imposing a consecutive federal sentence.

                                              3
determine how the two offenses would be grouped, (2) determine the offense levels

applicable to each group, and (3) determine the combined offense level for all the crimes.

At step (1), under U.S.S.G. § 3D1.2, the drug and immigration offenses would not be

grouped, because they do not involve “substantially the same harm.” U.S.S.G. § 3D1.2.

At step (2), let us assume a defendant whose narcotics offense equated to an offense level

of 29, which, at criminal history category I – not Rodriguez’s actual category – produces

a recommended guideline range of 87 to 108 months, and whose immigration offense

level was 24 – Rodriguez’s actual immigration offense level – which, at criminal history

category I, would produce a guideline range of 51 to 63 months.

       At step (3), the offense level for the more serious narcotics offense would count as

one Unit, and because the immigration offense is five levels less serious than the

narcotics offense, it would count as ½ Unit. See U.S.S.G. § 3D1.4(a), (b). With a total of

1½ Units, the court would be instructed to increase the base offense level for the more

serious offense by one level, id. § 3D1.4 (table), raising the defendant’s aggregate offense

level to 30. If we continue with our simplifying assumption of criminal history category

I, the Guideline recommendation would be 97 to 121 months, not the range of 138 to 165

months that would result from simply adding the ranges for the two offenses and running

the sentences consecutively. Assuming a top-of-the-range sentence, the defendant’s

sentence would increase from 108 to 121 months as a result of the immigration

conviction, not from 108 to 165. If this kind of analysis were applied in a case in which

108-month sentence was already being served, it would suggest that only 13 months, and

                                             4
not the full 57 months of the immigration sentence, should be required to run

consecutively.

       I do not for a moment suggest that this rather crude calculation yields an

appropriate sentence for Rodriguez, still less that the district court’s decision to impose a

fully consecutive sentence was unreasonable. First, as noted repeatedly, the calculation I

have made is a crudely oversimplified approximation, based on insufficient information

and some oversimplified assumptions, that does not reflect how the Guidelines would

apply to Rodriguez’s actual crimes. Second, even in making a precise calculation with

full information, it might well be appropriate not to look to how the actual narcotics

offense would be treated under federal law, but to respect the policies of the state

sentencing system, which might well impose higher or lower sentences for narcotics

offenses than the federal guidelines, and thus to utilize some approximation of a

guidelines level for the narcotics offense rather than the actual federal level. Third, the

Sentencing Commission itself recognizes that, even within the sphere in which they were

designed to operate, its rules for dealing with multiple-count convictions are hardly

perfect and “may produce occasional anomalies.” U.S.S.G. ch. 1, pt. A, introductory cmt.

4(e). Like other mechanical rules in the Guidelines, they are suggestive rather than

definitive, and the illusion of mathematical clarity that they provide may in any particular

case be more seductive than enlightening. Fourth, the multiple-count guidelines were not

designed to apply to the consecutive versus concurrent decision in the precise situation of

imposing an additional sentence on a defendant already serving an uncompleted term in a

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state prison. That is a situation analogous, but not perfectly identical, to the multiple-

count scenario. Accordingly, the Commission did not instruct that its multiple-count

rules should be applied in that situation, but instead left the question of concurrent versus

consecutive sentences to the wise discretion of the district court. Fifth, like every

recommendation in the Guidelines manual, even in their intended zone of application, the

multiple-count rules are only advisory. And finally, it cannot have been an abuse of

discretion for the district court not to have made the kinds of calculations I have

suggested here, as the defendant did not raise any such argument either in the district

court or on appeal.

       For these reasons, I am fully in accord with the conclusion and reasoning of the per

curiam opinion, which correctly affirms the sentence imposed as substantively

reasonable, and within the sound discretion of the district court. I merely suggest that in

cases of this sort, prosecutors, defense attorneys, and district courts may find it useful to

consider conducting the type of multiple-count analysis that I have outlined here, which

may provide a useful additional piece of information in considering an appropriate

sentence. After all, Congress has instructed that one of the factors to be considered in

determining an appropriate sentence is “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). There may be sound reasons in any particular case for

imposing a sentence that is fully consecutive to an undischarged sentence, even where the

multiple-count rules would have recommended a lesser sentence if the offenses had been

                                               6
prosecuted simultaneously. With an accurate view of the multiple-count analysis before

it, however, a district court might well conclude, in an appropriate case, that the accident

of when and where a defendant has been prosecuted for his various crimes might create

an unwarranted disparity if a fully consecutive sentence is imposed.




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