         09-1564-cr
         USA v. Perez


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 23 rd day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROGER J. MINER,
 8                PIERRE N. LEVAL
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       UNITED STATES OF AMERICA,
15
16                                       Appellee,
17
18                       -v.-                                                   09-1564-cr
19
20       FRANKIE PEREZ, also known as
21       Perez2250X@aol.com, also known as
22       Bxloveboy22@aol.com,
23
24                                       Defendant-Appellant.
25
26
27
 1   FOR APPELLANT:    EDWARD S. ZAS, Federal Defenders of New
 2                     York, Inc., Appeals Bureau, New York, NY.
 3
 4   FOR APPELLEE:     HOWARD S. MASTER, KATHERINE POLK FAILLA,
 5                     Assistant United States Attorneys, for
 6                     Preet Bharara, United States Attorney for
 7                     the Southern District of New York, New
 8                     York, NY.
 9
10        Appeal from the United States District Court for the
11   Southern District of New York (Cote, J.).
12
13       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the district court be

15   AFFIRMED.

16       Defendant-appellant Frankie Perez appeals from a

17   judgment entered April 8, 2009 in the United States District

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

19   convicting him upon a plea of guilty to one charge of using

20   a facility of interstate commerce to persuade, induce,

21   entice, and coerce a child to engage in sexual activity, in

22   violation of 18 U.S.C. § 2422(b).   On April 6, 2009, the

23   district court sentenced Perez principally to a term of 168

24   months’ imprisonment.   We assume the parties’ familiarity

25   with the underlying facts, the procedural history, and the

26   issues presented for review.

27       Perez first contends that his sentence should be

28   vacated as procedurally unreasonable because the district


                                    2
1    court failed to employ the correct legal standard.     We are

2    unpersuaded.   Though the district court did recite the

3    improper standard before imposing sentence — stating that

4    its duty was to impose a “reasonable” sentence, instead of

5    one “sufficient, but not greater than necessary” to fulfill

6    the goals of 18 U.S.C. § 3553(a)(2) — that misstatement does

7    not automatically render Perez’s sentence procedurally

8    infirm.   “[T]he court’s reference to imposing a ‘reasonable’

9    sentence under the § 3553(a) factors, as opposed to say an

10   ‘appropriate,’ ‘sensible,’ or ‘fair’ sentence under those

11   factors . . . does not invariably plant the seeds of

12   reversible error.”   United States v. Cruz, 461 F.3d 752, 756

13   (6th Cir. 2006); see also United States v. Ministro-Tapia,

14   470 F.3d 137, 142 (2d Cir. 2006).   It is well settled that

15   we do not require “robotic incantations” on the part of

16   district judges when imposing sentences, United States v.

17   Goffi, 446 F.3d 319, 321 (2d Cir. 2006), and we will

18   “entertain a strong presumption that the sentencing judge

19   has considered all arguments properly presented to her,

20   unless the record clearly suggests otherwise,” United States

21   v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006).   Here, there

22   is no basis to conclude that the district court failed to



                                   3
1    understand the command of the parsimony clause in sentencing

2    Perez.

3        Perez next contends that the sentence imposed was

4    procedurally unreasonable because the district court failed

5    to explain the basis for its upward departure from the

6    Guidelines range calculated by the Probation Office.     See 18

7    U.S.C. § 3553(c)(2); U.S.S.G. § 4A1.3(c).     Because Perez

8    failed to raise this argument to the district court, we

9    review only for plain error, see, e.g., United States v.

10   Brennan, 395 F.3d 59, 71 (2d Cir. 2005), and we discern no

11   such error.     While the district court failed to provide a

12   written statement of reasons to support its departure — from

13   a criminal history category of I to a criminal history

14   category of III — the court’s basis for departing was

15   clearly stated in open court, and is plain from the record

16   before us.

17       “The inadequacy of a defendant’s criminal history

18   category is not merely a permissible basis for an upward

19   departure . . . [but] an ‘encouraged’ basis for such a

20   departure.”     United States v. Simmons, 343 F.3d 72, 78 (2d

21   Cir. 2003) (citing Koon v. United States, 518 U.S. 81, 94-95

22   (1996)).     The district court’s decision to upwardly depart



                                     4
1    from the recommended Guidelines range was justified in light

2    of additional criminal conduct — to which Perez admitted but

3    which did not form the basis of his original Guidelines

4    calculation — that the court reasonably concluded would bear

5    on his risk for recidivism.   Moreover, the record amply

6    supports the court’s imposition of a sentence of 168 months’

7    imprisonment, the apogee of the post-departure Guidelines

8    range.   Because the district judge’s oral statements are

9    sufficient to justify the departure — and ultimate sentence

10   imposed — the judgment will not be disturbed.   “[S]ection

11   3553(c)(2) does not require that a district court refer

12   specifically to every factor in section 3553(a).   A

13   statement of the specific reason for the imposition of a

14   sentence different from that recommended suffices.”     United

15   States v. Goffi, 446 F.3d 319, 321 (2d Cir. 2006) (internal

16   quotation marks omitted).

17       Finally, though the district court neglected to include

18   a written statement of reasons to support its departure

19   pursuant to Section 3553(c)(2), that defect is not fatal to

20   the sentence.   “[W]here a reviewing court determines that a

21   departure is neither ‘too high’ nor ‘too low’ within the

22   meaning of 18 U.S.C. § 3742(f)(2), a district court’s



                                   5
1    failure to include in the written judgment an explanation

2    for its departure does not provide an independent basis for

3    remand.”   United States v. Fuller, 426 F.3d 556, 567 (2d

4    Cir. 2005).   In the past, our Court has suggested it to be

5    the “better course” to remand such matters to the district

6    court for a supplementation of the written record.    See,

7    e.g., Goffi, 446 F.3d at 322 n.2; United States v. Jones,

8    460 F.3d 191, 197 (2d Cir. 2006).   However, on the

9    particular facts and circumstances of this case, we conclude

10   that remand is not warranted.

11       We reject Perez’s remaining contentions as meritless.

12   For the foregoing reasons, the judgment of the district

13   court is hereby AFFIRMED.

14
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18                               By:




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