15-3511-cr
United States of America v. Fabio Casas-Melendez

                             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 22nd day of March, two thousand seventeen.

PRESENT:          JOSÉ A. CABRANES,
                  RICHARD C. WESLEY,
                               Circuit Judges.
                  WILLIAM K. SESSIONS III,
                               District Judge.*


UNITED STATES OF AMERICA,

                           Appellee,                           15-3511-cr

                           v.

FABIO CASAS-MELENDEZ, AKA JULIO CESAR
GUTIERREZ-ROJAS, AKA FABIO CASAS,

                           Defendant-Appellant.



FOR APPELLEE:                                              Emily Berger (Paul G. Scotti on the brief),
                                                           Assistant United States Attorneys for
                                                           Robert L. Capers, United States Attorney
                                                           for the Eastern District of New York,
                                                           New York, NY.
    *
      Judge William K. Sessions III, of the United States District Court for the District of Vermont,
sitting by designation.

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FOR DEFENDANT-APPELLANT:                                          Matthew B. Larsen, Federal Defenders of
                                                                  New York Appeals Bureau, New York,
                                                                  NY.

     Appeal from the judgment of the United States District Court for the Eastern District of
New York (Dora L. Irizarry, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

          Defendant-Appellant Fabio Casas-Melendez (“Casas”) appeals the September 6, 2016
judgment of the district court rendered after this Court’s July 13, 2016 order remanding his cause,
pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), for clarification on the record. The July
13, 2016 order asked the district court to determine whether an erroneous fact raised during the
initial sentencing hearing—that Casas had “turned a blind eye” to serious criminal activity occurring
in his own home, even though he was incarcerated at the time for an unrelated offense—affected
the sentence imposed by the district court. 1 Pursuant to the remand instructions, the district court
held that the sentence was not based on any erroneous fact and thus did not resentence Casas.2

         On appeal, Casas argues that a Jacobson remand was procedurally improper and asks that his
case to be remanded to a different district judge for resentencing. For the reasons set forth below,
we conclude that Cases waived this argument by not raising it in his initial appeal. We assume the
parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.
                                                       ***

         The threshold question is whether Casas waived the issue of remand to a different judge by
failing to raise it in the initial appeal, as the government argues. Casas contends that the issue was
not waived because the grounds for reassignment occurred at the remand hearing on September 6,
2013 and therefore arose after the initial appeal. Specifically, he argues that the judge disclaimed
reliance on the mistaken fact that she had expressly invoked at sentencing and reassignment is thus
required to preserve the appearance of justice.



        1  Both parties agree that the statement by the district judge that Casas had “turned a blind eye” to
serious criminal activity occurring in his own home was erroneous.
        2   At the original proceeding on November 10, 2015, Casas was convicted, upon entering a plea of
guilty, of illegally re-entering the U.S. after an aggravated felony conviction pursuant to 8 U.S.C. §§ 1326(a),
(b)(2). He was principally sentenced to 36 months imprisonment and three years of supervised release.




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         We disagree, and conclude that the issue was waived. Casas had both the opportunity and
incentive to ask for remand to a different judge at the time of the initial appeal. Where “an issue was
ripe for review at the time of an initial appeal but was nonetheless forgone, it is considered waived
and the law of the case doctrine bars . . . an appellate court in a subsequent appeal from reopening
such issues.” Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009)(quoting United States v. Quintieri, 306
F.3d 1217, 1229 (2d Cir. 2002)). In considering the initial appeal, this Court could have ordered a de
novo resentencing before another district judge. But Casas did not make that argument and thus
foreclosed bringing it now. See Brown v. City of Syracuse, 673 F.3d 141, 147 (2d Cir. 2012) (citation
omitted)(disfavoring “re-litigation . . . of issues impliedly resolved by the appellate court’s mandate.”
Id. at 75).

        In any event, even if the issue had not been thus foreclosed, nothing in the record suggests
that the district judge failed to follow this Court’s order or acted in a way that would jeopardize the
appearance of justice. After giving the parties an opportunity to present additional information, the
judge clarified whether she relied upon the erroneous fact and cited several factors that had
informed her initial sentencing decision. She stated: “I imposed a sentence of 36 months based
primarily on the fact that he had done a great job at raising his children under those difficult
circumstances. Had I taken into account the fact that there was, allegedly, criminal activity going on
in his household while he was there, I would not have imposed a downward variance. So, I did not
take that into consideration in imposing the sentence.” Special App’x 10-11. Unlike United States v.
McDavid, 41 F.3d 841, 844 (2d Cir. 1994), upon which Casas relies, the district judge did not silence
the parties to stop them from correcting the record.

                                           CONCLUSION

        We have considered all of appellant’s claims on appeal and found them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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