United States v. Perez-Frias

10-1401-cr
United States v. Perez-Frias
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
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(Submitted: March 22, 2011 Decided: March 31, 2011) 8
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Docket No. 10-1401-cr 10
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UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
-v.- 18
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PEDRO RUBEN PEREZ-FRIAS, 20
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Defendant-Appellant. 22
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Before: JACOBS, Chief Judge, CALABRESI and 26
LOHIER, Circuit Judges. 27
28
Defendant-Appellant Pedro Ruben Perez-Frias appeals 29
from an April 13, 2010 judgment of the United States 30
District Court for the Southern District of New York (Chin, 31
J.) entered following a plea of guilty to illegal reentry in 32
violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Perez- 33
Frias challenges the sentence of 42 months’ imprisonment on 34
the ground of substantive unreasonableness. We affirm. 35
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2
Darrell B. Fields, Federal 1
Defenders of New York, Inc., 2
Appeals Bureau, New York, New 3
York, for Defendant-Appellant. 4
5
Kan M. Nawaday, Assistant United 6
States Attorney (David Raskin, 7
Assistant United States 8
Attorney, on the brief), on 9
behalf of Preet Bharara, United 10
States Attorney for the Southern 11
District of New York, New York, 12
New York, for Appellee. 13
14
15
PER CURIAM: 16
17
Defendant Pedro Ruben Perez-Frias (“Perez-Frias”) 18
pleaded guilty to one count of illegally reentering the 19
United States without permission after having been deported 20
following a conviction for the commission of an aggravated 21
felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The 22
United States District Court for the Southern District of 23
New York (Chin, J.) sentenced Perez-Frias principally to 42 24
months’ imprisonment. Perez-Frias challenges only the 25
substantive reasonableness of his sentence, arguing [1] that 26
the district court’s sentence was unduly harsh in view of 27
the 18 U.S.C. § 3553(a) factors and [2] that the 16-level 28
enhancement applicable to reentrants with certain prior 29
convictions (a) is not based on review of past sentencing 30
practices and empirical studies, (b) is overly harsh 31

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compared to Guidelines applicable to more serious crimes, 1
and (c) is greater than necessary in view of districts that 2
have “fast track” programs. We affirm. 3
4
I 5
Perez-Frias, a citizen of the Dominican Republic, 6
immigrated to the United States in 1977. On or about 7
December 12, 1995, at age 27, Perez-Frias was convicted in 8
New York State Supreme Court, New York County, of 9
manslaughter in the first degree, resulting in a sentence of 10
7 to 21 years’ imprisonment. The relevant facts underlying 11
his conviction are as follows: Perez-Frias was dealing 12
marijuana, told a group of friends that he was having a 13
dispute with a rival seller, and inspired the murder of the 14
rival by telling his friends about his grievance, though 15
Perez-Frias was not otherwise involved in the killing. On 16
or about June 2, 2008, Perez-Frias was released on parole 17
into the custody of immigration authorities, and immediately 18
deported to the Dominican Republic. 19
In August 2009, Perez-Frias illegally reentered the 20
United States. Within two months, on October 1, 2009, he 21
was arrested in Manhattan for possession of marijuana. 22

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4
In December 2009, Perez-Frias was transferred from 1
state to federal custody, and charged in a single-count 2
indictment with illegal reentry without permission after 3
having been deported following a conviction for an 4
aggravated felony, in violation of 8 U.S.C. § 1326(a) and 5
(b)(2). On January 27, 2010, Perez-Frias pleaded guilty. 6
Prior to the plea, the Government provided Perez-Frias with 7
a letter pursuant to United States v. Pimentel, 932 F.2d 8
1029, 1034 (2d Cir. 1991), outlining its view of how the 9
U.S. Sentencing Guidelines (“Guidelines”) would apply to 10
Perez-Frias. The Government calculated an offense level of 11
21 and a Criminal History Category of III, yielding a 12
Guidelines range of 46 to 57 months’ imprisonment. At the 13
plea proceeding, Judge Chin conducted a thorough allocution, 14
the adequacy of which is not challenged on appeal. 15
The parties appeared before Judge Chin for sentencing 16
on April 7, 2010. The Presentence Report (“PSR”) concurred 17
in the Government’s Guidelines calculation and recommended a 18
bottom-of-the-range sentence of 46 months. 19
Perez-Frias did not challenge the Guidelines 20
calculation in the district court (and does not do so on 21
appeal). Instead, Perez-Frias’s sentencing submission 22

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contended that the applicable Guidelines range was greater 1
than necessary to comply with the purposes of § 3553(a) and 2
argued for a non-Guidelines sentence. Perez-Frias also 3
asked for a reduction corresponding to the number of months 4
he had been in federal custody--from December 2009 up to the 5
date of sentencing--even though that time was not subject to 6
credit on his federal sentence because Perez-Frias was in 7
federal custody under a writ of habeas corpus ad 8
prosequendum from New York State custody. The Government 9
requested that the District Court impose a within-Guidelines 10
sentence of 46 to 57 months. 11
Before sentencing, Judge Chin confirmed that he had 12
considered the parties’ written submissions and statements 13
in court, as well as the statutory factors. In fashioning a 14
sentence, Judge Chin focused on the fact that Perez-Frias 15
reentered soon after being deported and that he promptly 16
recidivated, engaging in the same drug activity that led to 17
his manslaughter conviction and ultimate deportation. Even 18
so, Judge Chin was prepared to give Perez-Frias a 19
bottom-of-the-range sentence of 46 months. Moreover, at the 20
defense’s request (and over the Government’s objection) the 21
District Court awarded Perez-Frias “credit” for his four 22

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months in federal custody and imposed a below-Guidelines 1
sentence of 42 months. 2
3
II 4
“Assuming that the district court’s sentencing decision 5
is procedurally sound, the appellate court should then 6
consider the substantive reasonableness of the sentence 7
imposed under an abuse-of-discretion standard.” Gall v. 8
United States, 552 U.S. 38, 51 (2007). “[W]hen conducting 9
substantive review, we take into account the totality of the 10
circumstances, giving due deference to the sentencing 11
judge’s exercise of discretion, and bearing in mind the 12
institutional advantages of district courts.” United States 13
v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (in banc). 14
“[W]e will not substitute our own judgment for the district 15
court’s on the question of what is sufficient to meet the 16
§ 3553(a) considerations in any particular case. See United 17
States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). We 18
will instead set aside a district court’s substantive 19
determination only in exceptional cases where the trial 20
court’s decision ‘cannot be located within the range of 21
permissible decisions.’” Cavera, 550 F.3d at 189 (quoting 22

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United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007). 1
“Generally, ‘[i]f the ultimate sentence is reasonable and 2
the sentencing judge did not commit procedural error in 3
imposing that sentence, we will not second guess the weight 4
(or lack thereof) that the judge accorded to a given factor 5
or to a specific argument made pursuant to that factor.’” 6
United States v. Pope, 554 F.3d 240, 246-47 (2d Cir. 2009) 7
(alteration in original) (quoting Fernandez, 443 F.3d at 8
34). 9
10
III 11
A 12
The district court imposed a below-Guidelines sentence 13
of 42 months’ imprisonment. “[I]n the overwhelming majority 14
of cases, a Guidelines sentence will fall comfortably within 15
the broad range of sentences that would be reasonable in the 16
particular circumstances.” Fernandez, 443 F.3d at 27. It 17
is therefore difficult to find that a below-Guidelines 18
sentence is unreasonable. See Kimbrough v. United States, 19
552 U.S. 85, 109 (2007) (“We have . . . recognized that, in 20
the ordinary case, the Commission’s recommendation of a 21
sentencing range will ‘reflect a rough approximation of 22

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sentences that might achieve § 3553(a)’s objectives.’” 1
(quoting Rita v. United States, 551 U.S. 338, 350 (2007))). 2
The district court considered Perez-Frias’s history and 3
personal characteristics; and the sentence was based on: 4
(1) the seriousness of Perez-Frias’s prior conviction 5
(manslaughter), (2) his rapid reentry after deportation, and 6
(3) his arrest soon afterward for conduct that (like the 7
manslaughter offense) stemmed from his involvement with 8
marijuana. The district court’s assessment of the “nature 9
and circumstances of the offense” and the “history and 10
characteristics of the defendant,” 18 U.S.C. § 3553(a), 11
supported the decision to sentence Perez-Frias no further 12
below the bottom of the Guidelines range. 13
B 14
Perez-Frias argues that the 16-level Guideline 15
enhancement for reentry is deficient because the Commission 16
arrived at it without reference to specific empirical data. 17
In support, Perez-Frias cites the Supreme Court’s decision 18
in Kimbrough, 552 U.S. at 109, holding that district judges 19
are entitled to conclude that the crack cocaine Guideline 20
was greater than necessary to meet the standards of 21
§ 3553(a) if they believe the Guideline “do[es] not 22

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exemplify the Commission’s exercise of its characteristic 1
institutional role”; and our recent decision in United 2
States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010), holding 3
that “the Commission did not use [an] empirical approach in 4
formulating the Guidelines for child pornography” and 5
instead amended the Guidelines at the direction of Congress. 6
However, the absence of empirical support is not the 7
relevant flaw we identified in Dorvee. We criticized the 8
child pornography Guideline in Dorvee because Congress 9
ignored the Commission and directly amended the Guideline, 10
which had the effect of “eviscerat[ing] the fundamental 11
statutory requirement in § 3553(a) that district courts 12
consider ‘the nature and circumstances of the offense and 13
the history and characteristics of the defendant.’” See 616 14
F.3d at 184-86, 187. There is no such flaw in the reentry 15
Guideline. Congress did not bypass the usual procedure for 16
amending the Guidelines with respect to illegal reentry 17
cases. To the contrary, the 16-level enhancement in § 2L1.2 18
was based on the Commission’s own “determin[ation] that 19
these increased offense levels are appropriate to reflect 20
the serious nature of these offenses.” U.S.S.G. Appx. C 21
(amend. 375, Reason for Amendment”). Moreover, as discussed 22

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above in Point III.A, the district court considered the 1
required § 3553(a) factors to arrive at Perez-Frias’s 2
sentence. Accordingly, Perez-Frias’s challenge to U.S.S.G. 3
§ 2L1.2 is without merit. 4
C 5
Perez-Frias deploys an argument that has been raised by 6
many defendants sentenced for illegal reentry: because the 7
illegal reentry is itself a nonviolent act, the 16-level 8
enhancement is unduly harsh. We join our sister Circuits 9
that have considered and rejected this argument. “The 10
applicable Guidelines range here is not rendered 11
unreasonable simply because § 2L1.2 establishes a base 12
offense level for a nonviolent offense that is equal to or 13
greater than that of certain violent offenses. Congress 14
‘has the power to define a crime and set its punishments.’” 15
United States v. Lopez-Reyes, 589 F.3d 667, 672 (3d Cir. 16
2009) (quoting United States v. MacEwan, 445 F.3d 237, 252 17
(3d Cir. 2006)); see also United States v. Ramirez-Garcia, 18
269 F.3d 945, 947-48 (9th Cir. 2001) (explaining that 19
§ 2L1.2 properly implements Congress’s desire “to enhance 20
the penalties for aliens with prior convictions in order to 21
deter others[]” by increasing the “sentencing range for 22
aliens with prior convictions”). 23

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D 1
Perez-Frias contends that his sentence is unreasonable 2
because much lower sentences have been shown to be 3
sufficient but not greater than necessary under § 3553(a) in 4
districts with so-called fast-track programs. We rejected 5
that argument in United States v. Hendry, 522 F.3d 239, 242 6
(2d Cir. 2008) (per curiam), which concluded that defendants 7
in fast-track districts are not similarly situated to 8
defendants in non-fast-track districts, so that “sentences 9
in fast-track districts cannot be compared with sentences in 10
non-fast-track districts in order to demonstrate that the 11
latter are longer than necessary.” 12
13
CONCLUSION 14
For the foregoing reasons, we AFFIRM the judgment of 15
the district court. 16

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