     09-4630-cr
     United States v. Lasaga

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                               AMENDED 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 20th day of October, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                WILFRED FEINBERG,
 9                              Circuit Judge.*
10
11       - - - - - - - - - - - - - - - - - - - -X
12       United States of America,
13                           Appellee,
14
15                    -v.-                                               09-4630-cr
16
17       Antonio Lasaga,
18                Defendant-Appellant.
19
20       - - - - - - - - - - - - - - - - - - - -X
21



                *
               Because the Honorable José A. Cabranes recused
         himself prior to oral argument, this appeal is being decided
         by the remaining two members of the panel pursuant to Second
         Circuit Internal Operating Procedure E(b).
                                                  1
 1   APPEARING FOR APPELLANT:   Diane Polan (S. Max Simmons, on
 2                              the brief), Law Offices of Diane
 3                              Polan, LLC, New Haven, CT.
 4
 5   APPEARING FOR APPELLEE:    Jonathan S. Freimann, Assistant
 6                              United States Attorney (Deirdre
 7                              Daly, Acting United States
 8                              Attorney, and Robert M. Spector,
 9                              Assistant United States
10                              Attorney, District of
11                              Connecticut, on the brief).
12
13        Appeal from a judgment of the United States District
14   Court for the District of Connecticut (Thompson, J.).

15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.

18        Defendant-Appellant Antonio Lasaga (“Lasaga”) appeals
19   from a judgment of the United States District Court for the
20   District of Connecticut (Thompson, J.), entered on October
21   23, 2009 (the “Order”), refusing by written decision to
22   resentence Lasaga. The judgment follows this Court’s remand
23   in United States v. Lasaga, 136 F. App’x 428 (2d Cir. 2005),
24   which was issued in light of United States v. Booker, 543
25   U.S. 220 (2005) and United States v. Crosby, 397 F.3d 103
26   (2d Cir. 2005). We assume the parties’ familiarity with the
27   underlying facts, the procedural history, and the issues
28   presented for review.

29        This case returns to us for a third time following the
30   decisions of this Court in United States v. Lasaga, 328 F.3d
31   61 (2d Cir. 2003) (Lasaga I), which remanded for further
32   factual findings with respect to the district court’s upward
33   departure on the basis of psychological harm to a minor
34   victim, and United States v. Lasaga, 136 F. App’x 428 (2d
35   Cir. 2005) (Lasaga II), which remanded for a determination
36   whether resentencing was necessary in light of this Court’s
37   decision in Crosby and instructed the district court to
38   reconsider the criminal history departure “in light of the
39   Supreme Court’s recent decision in Shepard v. United States,
40   544 U.S. 13 (2005) . . . and . . . Williams v. United
41   States, 503 U.S. 193, 201 (1992) . . . .” Lasaga II, 136 F.
42   App’x at 433.



                                  2
 1        On remand, the district court solicited and received
 2   resentencing memoranda from the government and Lasaga, and
 3   concluded that it would not have imposed a different
 4   sentence had the Sentencing Guidelines been advisory at the
 5   time the sentence was imposed. In so doing, the district
 6   court rejected Lasaga’s argument that the court could not
 7   enhance the sentence on any basis other than facts admitted
 8   by Lasaga or proved to a jury beyond a reasonable doubt; and
 9   the court observed that it had already considered all of the
10   mitigating factors set forth in Lasaga’s resentencing
11   memorandum at each of the prior sentencing hearings. With
12   respect to this Court’s instruction concerning the criminal
13   history departure, the district court advised: “Assuming
14   arguendo a Criminal History of Category I, the resulting
15   range under the Sentencing Guidelines is 151 months to 188
16   months, which encompasses the sentence the court continues
17   to view as being the appropriate sentence. Therefore the
18   court need not address the issues of departure to Criminal
19   History II.” United States v. Lasaga, No. 99 cr 122(AWT),
20   Slip Op. at 3-4 (D. Conn. Oct. 23, 2009).

21        In the current appeal, Lasaga cites the district
22   court’s discussion as to whether it would impose the same
23   sentence even without a one-level criminal history
24   enhancement. Lasaga argues that, by recalculating the
25   guideline range, the district court sentenced Lasaga de novo
26   without the benefit of a sentencing hearing and in violation
27   of Fed. R. Crim. P. 32.

28        We review a sentence for reasonableness even after a
29   district court declines to resentence pursuant to Crosby.
30   United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007).
31   The reasonableness review contemplated by Booker requires
32   “consideration not only of the sentence itself, but also of
33   the procedures employed in arriving at the sentence.”
34   United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006).
35   Reasonableness review is “akin to review for abuse of
36   discretion,” which asks “whether the sentencing judge
37   ‘exceeded the bounds of allowable discretion[,] . . .
38   committed an error of law in the course of exercising
39   discretion, or made a clearly erroneous finding of fact.’”
40   Id. at 27 (quoting Crosby, 397 F.3d at 114).

41        Lasaga’s primary appellate contention, that the court
42   in effect imposed a new sentence, does not take into account
43   the district court’s limited obligations in response to a
44   Crosby remand. First, district courts “should obtain the

                                  3
 1   views of counsel, at least in writing, but ‘need not’
 2   require the presence of the Defendant.” Crosby, 397 F.3d at
 3   120 (citation omitted). Next, “[u]pon reaching its decision
 4   (with or without a hearing) whether to resentence, the
 5   district court should either place on the record a decision
 6   not to resentence, with an appropriate explanation, or
 7   vacate the sentence and, with the Defendant present,
 8   resentence in conformity with the [Sentencing Reform Act of
 9   1984], [Booker], and [Crosby], including an appropriate
10   explanation.” Id. (citation omitted). Here, the district
11   fulfilled both obligations. Specifically, in deciding not
12   to resentence Lasaga, the district court explained that it
13   had, on two prior occasions, considered all of factors set
14   forth in 18 U.S.C. § 3553(a), together with the mitigating
15   factors set forth in Lasaga’s sentencing memoranda, and
16   concluded that 180 months’ imprisonment was an appropriate
17   sentence.

18        The district court’s discussion of Lasaga’s criminal
19   history did not amount to a de novo sentence; rather, it was
20   an acknowledgment that the criminal history departure would
21   have had no impact on the sentencing, given that either
22   guideline range would have encompassed Lasaga’s ultimate
23   sentence of 180 months.1 Accordingly, because “the record
24   indicates clearly that the district court would have imposed
25   the same sentence” regardless of whether or not the upward
26   departure applies, any claimed error (assuming that there
27   was error), “may be deemed harmless.” United States v. Jass,
28   569 F.3d 47, 69 (2d Cir. 2009) (internal quotation marks
29   omitted). “As long as the sentencing judge is satisfied
30   that the same sentence would have been imposed no matter
31   which of the two guideline ranges applies, the sentence
32   should stand.” United States v. Bermingham, 855 F.2d 925,
33   934 (2d Cir. 1988).

34        Having affirmed the district court’s judgment, we DENY
35   as moot Lasaga’s motion to hold the appeal in abeyance
36   pending the Supreme Court’s decision in Pepper v. United


         1
           Following this Court’s remand in Lasaga I, the
     district court calculated Lasaga’s offense conduct level to
     be 34 and his criminal history category to be level II. The
     corresponding sentencing range was 168 months to 210 months.
     Assuming an offense conduct level of 34 and a criminal
     history category of level I, the sentencing range would be
     151 months to 188 months.
                                  4
1   States, 130 S. Ct. 3499 (2010). Finding no merit in
2   Lasaga’s remaining arguments, we hereby AFFIRM the district
3   court’s judgment.

4
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8
9




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