09-0337-cr
United States v. Antonio-Genan

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH
THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (W ITH THE NOTATION ‘SUM M ARY ORDER’). A PARTY CITING A SUM M ARY ORDER
M UST 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 29th day of January, two thousand and ten.

Present:
               JOHN M. WALKER,
               CHESTER J. STRAUB,
               ROSEMARY S. POOLER,

            Circuit Judges.
_______________________________________________

United States of America,
                                                    Appellee,

       -v-
                                                                                  (09-0337-cr)

Perfecto Antonio-Genan, also known as Pedro Germosen, also known as Samuel Huertas,

                                                    Defendant-Appellant.


Appearing for Appellant:             David A. Lewis, Federal Defenders of New York, New
                                     York, N.Y.
Appearing for Appellee:              Preet Bharara, U.S. Attorney for S.D.N.Y (Amie N. Ely,
                                     Andrew L. Fish, of counsel).

      Appeal from the United States District Court for the Southern District of New York
(Berman, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Perfecto Antonio-Genan, appellant, pled guilty to illegal re-entry into the United States
after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). On January 22, 2009, Judge
Berman of the Southern District of New York sentenced appellant to 46 months’ imprisonment
followed by three years of supervised release and a special assessment of $100. Antonio-Genan
now appeals.

       We assume the parties’ familiarity with all additional underlying facts, procedural history,
and specification of issues for review.

        The only issue before this court is whether the judge’s conclusion that appellant was on
parole when he illegally re-entered the United States and thus subject to a two point criminal
history increase under U.S.S.G. § 4A1.1(d) was erroneous, and rendered appellant’s sentence
unreasonable.

       The facts of appellant’s parole are not in dispute, the only question is the interpretation of
New York Executive Law § 259-j (3-a), part of the New York State Drug Law Reform Act of
2005, as applied to federal sentencing decisions. The provision states that the division of parole
“must grant termination of sentence after two years of unrevoked parole to a person serving an
indeterminate sentence for any other felony offense defined in article two hundred twenty or two
hundred twenty-one of the penal law.” The parties agree that appellant’s conviction is eligible
under § 259-j (3-a), and that appellant’s parole was never revoked.

        Ordinarily we review an alleged procedural error for abuse of discretion. United States v.
Parker, 577 F.3d 143, 147 (2d Cir. 2009). Here, however, we need not decide whether the district
court committed procedural error in its interpretation of New York Executive Law § 259-j (3-a)
in calculating appellant’s criminal history category because any error was harmless. See id.

        Even if the district court procedurally erred when it concluded that appellant was on
parole at the time of his illegal re-entry, the district court imposed a non-guideline sentence of 46
months’ imprisonment “as if” defendant was correct that he was not on parole when he re-entered
the United States. Therefore, it is clear that the district court would have imposed the same
sentence regardless of its ultimate Sentencing Guidelines range calculation. And as appellant
rightly concedes, “if the district court ‘indicates that it would have’ imposed the same sentence,
no matter the outcome of the dispute before it, there is no basis for requiring a resentencing.” Df.
Reply Br. at 8 (citing United States v. Borrego, 388 F.3d 66, 69 (2d Cir. 2004)). Because we
conclude that the district court so indicated, any procedural error was harmless, and thus, need not
be resolved on this appeal.

       Accordingly, the judgement of the district court hereby is AFFIRMED.

                                                              FOR THE COURT:
                                                              Catherine O’Hagan Wolfe, Clerk
