Opinion
20-2102-cr
04-22-2021
UNITED STATES OF AMERICA, Appellee, v. VICTOR CASTILLO, AKA FRANCISCO GARCIA ABREU, AKA FRANCISCO GARCIA ABRAEU, Defendant-Appellant.
FOR APPELLEE: Thomas R. Sutcliffe and Paul D. Silver, Assistant United States Attorneys, for Antoinette T. Bacon, United States Attorney for the Northern District of New York, Albany, New York. FOR DEFENDANT-APPELLANT: Melissa A. Tuohey, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, New York.
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 April, two thousand twenty-one. PRESENT: DENNY CHIN, MICHAEL H. PARK, Circuit Judges, VICTOR A. BOLDEN, District Judge. FOR APPELLEE: Thomas R. Sutcliffe and Paul D. Silver, Assistant United States Attorneys, for Antoinette T. Bacon, United States Attorney for the Northern District of New York, Albany, New York. FOR DEFENDANT-APPELLANT: Melissa A. Tuohey, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, New York.
Judge Victor A. Bolden, of the United States District Court for the District of Connecticut, sitting by designation.
Appeal from the United States District Court for the Northern District of New York (McAvoy, J.).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Victor Castillo appeals the district court's judgment, entered June 19, 2020, sentencing him principally to twenty-five months' imprisonment and three years' supervised release. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
On April 17, 2020, Castillo pleaded guilty to one count of illegal re-entry in violation of 8 U.S.C. § 1326(a), (b)(1). The Presentence Report ("PSR") calculated a sentencing range of twenty-one to twenty-seven months' imprisonment and one to three years' supervised release. At Castillo's sentencing hearing on June 17, 2020, his counsel asked the court to "depart downward from the [G]uidelines and consider a sentence of time served." App'x at 49. In support, Castillo's counsel pointed out that Castillo would soon be deported, his imprisonment would impose significant costs on the taxpayers, he had children to support, and he had an underlying health condition. The government requested "a sentence at the high end of the [G]uidelines range," App'x at 50, pointing to Castillo's prior offenses and the need to deter him "from any further re-entry or further recidivism," App'x at 52. As noted, the court sentenced Castillo to twenty-five months' imprisonment and three years' supervised release.
Castillo argues on appeal that his sentence is substantively unreasonable because the district court failed to give appropriate weight to all of the factors set out in 18 U.S.C. § 3553(a) in imposing a sentence. We are unpersuaded.
To the extent Castillo argues that the district court committed procedural error in failing to consider all of the factors set out in 18 U.S.C. § 3553(a), we find no such error. See App'x at 55 (noting that the court was "concentrating on the factors" set out in § 3553(a)). --------
"Our review of a sentence for substantive reasonableness is particularly deferential, and we will set aside only those sentences that are so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that allowing them to stand would damage the administration of justice." United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (internal quotation marks and alteration omitted). The "weight to be afforded any sentencing factor is a matter firmly committed to the discretion of the sentencing judge." United States v. Bleau, 930 F.3d 35, 42 (2d Cir. 2019) (internal quotation marks omitted).
Given Castillo's criminal history (he was convicted of drug trafficking in 1999 and 2008, was deported, illegally re-entered, and then began trafficking in drugs again), the within-Guidelines sentence that the district court selected was well "within the range of permissible decisions," United States v. Rivernider, 828 F.3d 91, 111 (2d Cir. 2016) (internal quotation marks omitted). Accordingly, the sentence was not substantively unreasonable.
We have considered Castillo's remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk