Petition for Writ of Certiorari — Naquan Reyes, Petitioner v. United States

Case 18-3695, Document 123-1,AZl*&12020, 2878904, Pagel of S

18-3695

United States a. Naquan Reyes

UNITED STATES COURT OF APPEATS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.

CITATION TO A SUMMARY ORDER FrLED ON OR AFTER IANUARY 7, 2007, t5

PERMITTED AND IS GOVERNED BY FEDERAL RUIE OF APPELLATE PROCEDURE

32.1AND 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 TO 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 8ft day otluly, two thousand twenty.

PRESENT:

l?il,?,i:#ifl

GERARD E. LYNCH,

Circuit ludges.

UNITED STATES OF AMERICA,

Appellee,

v.

No. 18-3595

NAQUAN REYES,

Defendant-Appellant.

Case 18-36S5, Document 123-1, *71A812A20, 2878904, Page2 of I

FOR APPELLEE:

KgvtN Tnowgr, Assistant United

States Attomey (Elizabeth Geddes,

Assistant United States Attorney, on

thebriefl, for Richard P. Donoghue,

United States Attomey, Eastem

District of New York, Brooklyn, NY.

FOR DEFENDANT.APPELLANT:

ANpRew H. FnurslD, Law Office of

Andrew Freifeld, New York, NY.

Appeal from a judgment of the. United States District Court for the Eastem

District of New York (|ohnson, /.).

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADIUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

In February 2015, Defendant-Appellant Naquan Reyes pleaded guilty to one

count of conspiracy to commit bank fraud and one count of obstruction of justice

rfiurder in the second degree. See 18 U.S.C. SS 1349, 13M;1512(a)(l)(C), 2. The

United States District Court for the Eastem District of New York (Townes, /.)

sentenced Reyes to 30 years' imprisonment on the bank fraud count and life

imprisonment on the obstruction of justice murder count. In October 2018, on

remand from this Court in light of an error.in the district court's original Guidelines

calculatiorL see United Stqtes a. Reyes, 7L8 F. App'* 56, 62 (2d Cir. 2018) (summary

2

Case 18-3695, Document 123-1, ATIA8,12AZ0, 2878904, pageS of I

order), the district court (Johnson, /.)1 resentenced Reyes, based on the corrected

Guidelines calculatioru to the same terms of imprisonment as the original sentence:

30 years' imprisonment on the bank fraud count and life imprisonment on the

obstruction of justice murder count. Reyes appeals, arguing that his sentence is

procedurally and substantively unreasonable. We assume the parties' familiarity

with the underlyi.g facts, the procedural history of the case, and the issues on

appeal.

Generally, w€ "review a sentence for procedural and substantive

reasonableness under a'deferential abuse-of-discretion standard."' Llnited States

a. 9ingh, 877 F.3d 107, 115 (2d Cir. 2017) (quoting Gall a. Llnited States,552 U.S. 38,

41 (2007)). Where, as here, a defendant fails to raise a procedural objection at the

tiYne of sentencin& we review for plain error.2 See Ltnited States o. Caltabiano, STl

1 The case was reassigned to Judge Sterling Johnson after Judge Sandra Townes passed

away in 2018.

2 Reyes implies that we should apply a less stringent plain error standard of review. He

cites several cases for this proposition. See llnited States a. lones,878 F.3d 10, 15 (2d Cir.

2017);UnitedStatesa.Wernick,591,F.3d108,L13 (2dCir.2012);llnitedStatesa.Gamez,STT

F.3d 394, 397 (2d, Cir. 2009) (per curiam); llnited States a. Williams, 3gg F.3d,450, 454-57 (2d,

Cir. 2005). In United States a. Williams, we said that review of a sentencing error is

"fundamentally different" from review of a jury trial error. 399 F.3d at 456. Because of

this, we concluded that "there is no need to apply the plain error doctrine in the sentencing

context with precisely the sa'me procedure that has been used in the context of review of

errois occurring at trial." Id. at 457. Here, the govemment argues that we should

3

Case 18-3S95, Document 123-1,A71AW2020,2878904, Page4 of I

F.3d 2L0, 219 (2d Cur.2017). Plain error exists when "(1) there is an error; (2) the

error is clear or obvious, rather than subject to reasonable dispute; (3) the error

affected the appellant's substantial rights, which in the ordinary case means it

affected the outcome of the district court proceedings; and (a) the error seriously

affects the fairness, integrifl, or public reputation of judicial proceedings." Llnited

States a. Marcus,560 U.S. 258, 262 (20J0) (alteration and internal quotation marks

omitted).

Section 3553(a) of Title 18 "requires a district court to consider several factors

in determiri^g a sentence." United States a. Wagner-Dano, 629 F.gd 83, 88 (2d Cir.

20LZ). The district court errs procedurally 7f., inter nlia, "it does not consider the

$ 3553(a) factors, or rests its sentenge on a clearly erroneous finding of f.act."

United States a. Caaera,550 F.3d 180, 190 (2d Cir. 2008) (en banc). Generally, "we

Presume that a sentencing judge has faithfully discharged her duty to consider the

statutory factors." Wagner-Dano, 679 F.3d at 89 (intemal quotation marks

omitted). We do not require "robotic incantations" from the district court to prove

decline to apply the less stringent form of plain error review because "'all cases which

aPPly our relaxed form of plain error review appear to involve conditions of supervised

release."' Gov. Br. at24n.7 (citing llnited States o. Bowman,797 F. App'* 580, 584 n.l (2d

Cir. 2019) (summary order)). As in Bowman, "we need not reach the question of how

broadly [the relaxed] standard applies" because under either standard the result is the

same. 797 F.App'* at 584 n.1.

Case 18-3695, Document 123-1 , 071A8t2A20, lBTBg04, pages of I

that it has considered each $ 3553(a) factor, id. (intemal quotation marks omitted),

but "we require more than a few magic words," llnited States a. Corsey,723 F.3d

366, 376 (2d Cir. 2013), as corrected (]uly 24,2013). In essence, the district court

must "create enough of a record so that an appellate court can be confident that the

sentence resulted from the district court's considered judgment as to what was

necessary to address the various, often conflictin& purposes of sentencing." Id.

(internal quotation marks omitted).

Here, the district court explicitly referred to $ 3553(a) and some of the

relevant factors when resentencing Reyes .

See App. 166 ("[Section] 3553(a) says

that I must impose a sentence that is sufficient but not greater than necessary to

comply with the Purposes of the statute. I must take into consideration the nature

oT the circuinstances of the offense. . .

. I take into consideration the history and

the characteristics of this defendant IS 3553(aX1)1. I must also take into

consideration the seriousness to promote a respect for the law [$ 3553(a)(2)(A)].").

Additionally, the district court stated, "I listened to the argument of counsel [and]

I read the submissions." Id. Despite thig Reyes argues that the district court

failed to address several of the mitigating factors that he asserted" in his sentencing

memorandum. We, however, "'never have required a District Court to make

Case 18-3695, Document 123-1,071A8,12020, 2878904, Page6 of I

specific resPonses to points argued by counsel in connection with sentencing."'

Wagner-Dano, 679 F.3d at 89 (quoting United States a. Bonilla,518 F.3d 102,1II (2d

Cir. 2010)). For these reasons, and because we generally presume that the district

court has considered $ 3553(a)'s factors even if it does not list all of them on the

record, seeWagner-DAno,679 F.3d at 88-89, we conclude that the court did not err

procedurally when resentencing Reyes, see Caoera,550 F.3d at 190; see also Marcus,

560 U.S. at262.

Tuming to our review of the district court's explanation for the sentence

imposed, $ 3553(c) requires that "[t]he court, at the time of sentencing, shall state

in open court the reasons for its imposition of the particular sentence, and, if the

sentence . . . is of the kind, and within.the range, described in subsection (a)(4), and

that range iSxceeds 24 months, the reason for imposing a sentence at a particrilar

point within the range." 18 U.S.C. g 3553(c). As with g 3553(a), "[t]here is no

mechanical test for compliance with $ 3553(c) ., w€ simply expect the court to

identify the consideration or considerations driving the selection of the sentence

that was actually imposed." llnited States a. Rosa,957 F.3d113,LLB (2d Cfu. 2020).

"Indeed, the'statement' requirement of $ 3553(c) sets a low threshold." Id. atl19.

Case 18-3695, Document 123-1 , 0V 10812A20, 2878S04, Page7 of I

Flere, the district court explained in open court that it had listened to the

arguments presented by Reyes's counsel and had "read the submissions." App.

1"66. The court also explained that it considered the history and characteristics of

Reyes as well as the nature of the offense. Because the district court found the

victim's murder "horrendous," and because "[i]t was personal, the deceased was

strangled," the court sentenced Reyes to life in prison. ld. L65. Although the

statement is brief, this is not a case where the district court failed to provide any

explanation for its sentence. See Rosa,957 F.3d at'1.1.6, 122. The district court's

statement of reasons for the sentence imposed is not so lacking that we are required

to conclude the court clearly erred in resentencing Reyes. Caltabiano, ST'1. F.3d at

21g.

'

Reyes:argues further that his sentence of life imprisonment is substantiVely

unreasonable. Not only does this argument fail on the merits, but Reyes has

waived the argument by insufficiently developing it in his brief;Reyes's only effort

to do so is a paltry sentence lacking any cite to applicable case law. Reyes

therefore has waived his argument that his sentence is substantively unreasonable.

See United States a. Botti, 71L F.3d 299, 313 (2d Cir. 2013) ("[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation,

Case 18-3695, Document 123-1,A7!AW2A20, 2878904, Page8 of 8

are deemed waived." (internal quotation marks omitted)). Even if it were not

waived, however, based on the totality of the circumstances, and giving due

deference to the district court's determination, we conclude that the sentence of life

imprisonment is not substantively unreasonable. The sentence was within the

Guidelines range of 360 months to life. It cannot be said that the sentence was

"shockingly high" or "unsupportable as a matter of law." Llnited States a. Douglns,

713 F.3d 694, 7OO (2d Cir. 201,3) (intemal quotation marks omitted); see also llnited

Stqtes u. Frias,521 F.3d 229,236 (2d Cir. 2008) (affirming within-Guidelines sentence

of life imprisonment for conspirary to commit murder in connection with a

narcotics offense).

We have reviewed the remainder of Reyes's arguments and find them to be

r&ithout merit. For the foregoing reasons, the judgment of the district couit is

AFFIRMED.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court