15-677-cr
United States v. Velasquez-Argueta

                              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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of March, two thousand sixteen.

PRESENT:        JOSÉ A. CABRANES,
                BARRINGTON D. PARKER,
                DEBRA ANN LIVINGSTON,
                             Circuit Judges.



UNITED STATES OF AMERICA,

                         Appellee,                       No. 15-677-cr

                         v.

DIMAS VELASQUEZ-ARGUETA,

                         Defendant-Appellant.



FOR DIMAS VELASQUEZ-ARGUETA:                         Fonda Dawn Kubiak, Federal Public
                                                     Defender’s Office, Western District of
                                                     New York, Buffalo, NY.

FOR UNITED STATES OF AMERICA:                        Stephan J. Baczynski (Joseph J.
                                                     Karaszewski, on the brief), Assistant United
                                                     States Attorneys, for William J. Hochul, Jr.,
                                                     United States Attorney for the Western
                                                     District of New York, Buffalo, NY.
       Appeal from a judgment of the United States District Court for the Western District of New
York (Richard J. Arcara, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Dimas Velasquez-Argueta (“Velasquez-Argueta”), a citizen of
Honduras, pleaded guilty to one count of violating 8 U.S.C. § 1326(a) and (b)(2), arising from his
reentry of the United States after having been deported subsequent to a conviction for committing
an aggravated felony. Velasquez-Argueta was sentenced principally to 57 months’ imprisonment.
The District Court entered judgment against Velasquez-Argueta on February 27, 2015. This appeal
followed.

         The sole issue before us on appeal is whether the sentence imposed by the District Court is
procedurally or substantively unreasonable. Velasquez-Argueta argues that his sentence is (1)
procedurally unreasonable because the District Court failed to address or acknowledge his
arguments in support of a lesser sentence and relied on clearly erroneous facts; and (2) substantively
unreasonable because it is greater than necessary to serve the goals of sentencing. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal. For the reasons set forth below, we reject Velasquez-Argueta’s procedural- and substantive-
reasonableness arguments as meritless.

        “We review a sentence for procedural and substantive reasonableness under a deferential
abuse-of-discretion standard.” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (internal
quotation marks omitted). A sentence is procedurally unreasonable if the district court “fails to
calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing
Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly
erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Chu, 714 F.3d
742, 746 (2d Cir. 2013) (internal quotation marks omitted). “We will set aside sentences as
substantively unreasonable only in exceptional cases where the trial court’s decision cannot be
located within the range of permissible decisions” because the sentence is “so shockingly high,
shockingly low, or otherwise unsupportable as a matter of law that allowing [it] to stand would
damage the administration of justice.” Thavaraja, 740 F.3d at 259 (internal quotation marks omitted).

        First, we conclude that the District Court did not err procedurally when it imposed the 57-
month sentence. We reject Velasquez-Argueta’s argument that the District Court was required to
specifically address his arguments in support of a downward departure during the sentencing
hearing. “[W]e entertain a strong presumption that the sentencing judge has considered all
arguments properly presented to [him], unless the record clearly suggests otherwise. This
presumption is especially forceful when, as was the case here, the sentencing judge ma[de]

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abundantly clear that [he] has read the relevant submissions and that [he] has considered the
§ 3553(a) factors.” United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on other grounds by
Rita v. United States, 551 U.S. 338 (2007); see App. 79, 83–84. Moreover, the record reveals that the
District Court adequately explained its sentence. See App. 83–85.

         We also reject Velasquez-Argueta’s argument that the District Court based the sentence on
clearly erroneous facts when it stated during sentencing that it “believe[d]” that Velasquez-Argueta
“ha[d] been either removed or deported” six times. App. 84. According to the Presentence
Investigation Report, Velasquez-Argueta had been removed or deported five times and ordered
removed a sixth time, which order was not immediately executed because he was returned to state
custody pursuant to a warrant for aggravated rape. Accordingly, the District Court’s statement
during the sentencing hearing, even if imprecise, does not demonstrate that the Court based
Velasquez-Argueta’s sentence on a clearly erroneous fact.

        Second, having reviewed the record, we conclude, substantially for the reasons stated by the
District Court during the sentencing hearing, that Velasquez-Argueta’s sentence of 57 months’
imprisonment is not substantively unreasonable. See App. 83–86.

                                            CONCLUSION

       We have considered the defendant-appellant’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the February 27, 2015 judgment of the District Court.


                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




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