Summary
holding that "[e]ven if [the defendant's] challenge to his conviction had substantive merit, he would be barred from bringing it now"
Summary of this case from Richards v. U.S.Opinion
No. 07-0916-cr.
June 19, 2009.
Appeal from the United States, District Court for the Southern District of New York (Buchwald, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of conviction and sentence of said District Court be and hereby is AFFIRMED:
Michael J. Garcia, United States Attorney, Southern District of New York (Anna E. Arreola, Katherine Polk Failla, Assistant United States Attorneys, Of Counsel), New York, NY, for Appellee.
Francisco Perez, Youngstown, OH, pro se.
SUMMARY ORDER
Francisco Perez appeals from his conviction, after a guilty plea, of one count of illegal reentry, and his 70-month sentence of imprisonment. We assume the parties' familiarity with the facts, proceedings below, and issues raised on appeal, and we hold as follows.
Perez was found in violation of supervised release in the same district court proceedings, and sentenced to 12 months imprisonment, to be served concurrently with the 70-month term of imprisonment imposed for the new conviction. He has not challenged the finding of violation or the corresponding sentence on this appeal.
Conviction
Even if Perez's challenge to his conviction had substantive merit, he would be barred from bringing it now. "[A] defendant who pleads guilty unconditionally admits his guilt and waives his right to appeal all non-jurisdictional contentions." United States v. Maher, 108 F.3d 1513, 1528 (2d Cir. 1997). After a guilty plea, a defendant may not pursue "the merits of [the defendant's independent] claims as such, but rather whether the guilty plea had been intelligently and voluntarily made with the advice of competent counsel." United States v. Coffin, 76 F.3d 494, 497-98 (2d Cir. 1996) (quoting Tollett v. Henderson, 441 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)). Here, Perez does not assert that his plea was not knowing or voluntary, or that the plea hearing was otherwise defective, and he wishes to raise only his independent claims that his deportation order and the indictment against him were defective. His claim is barred.
If we were to review Perez's challenge to his conviction, we would find it meritless. Contrary to Perez's arguments on appeal, Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), has no bearing on his case. In Lopez, the Supreme Court held that a state drug conviction for an offense that is made a felony under state law, but whose elements describe conduct that is only a misdemeanor under federal law, is not an aggravated felony. 549 U.S. at 60, 127 S.Ct. 625. That holding does not affect the validity of the underlying deportation order in this case, which was based on Perez's conviction for a controlled substance offense. See 8 U.S.C. § 1227(a)(2)(B)(i) (making-deportable any alien convicted of a violation relating to a controlled substance, other than a single offense involving possession of marijuana).
Sentence
In reviewing a sentence, this Court is required to determine whether the sentence is "reasonable." United States v. Carr, 557 F.3d 93, 107 (2d Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, $28 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007)). In making that determination, the Court uses "the familiar abuse-of-discretion standard of review," regardless of whether the sentence was within or outside the Guidelines-recommended range. Carr, 557 F.3d at 107 (citing Gall 128 S.Ct. at 591, 594). Reasonableness review has both a procedural and a substantive component. See, e.g., United States v. Irving, 554 F.3d 64, 71-72 (2d Cir. 2009). In the absence of record evidence suggesting otherwise, this Court, in reviewing the procedural reasonableness of a sentence, presumes that the district court has faithfully discharged its duty to consider the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Brown, 514 F.3d 256, 264 (2d Cir. 2008). In reviewing a sentence for substantive reasonableness, the Court is guided by the § 3553(a) factors that the sentencing court is required to apply. See, e.g., Carr, 557 F.3d at 107.
We conclude that Perez's sentence is procedurally reasonable. Lopez is as irrelevant to Perez's sentence as it is to his conviction. First, as explained above, Perez's challenge to his deportation order is meritless. Second, U.S.S.G. § 2L1.2(b)(1)(A) imposes a 16-level enhancement where, inter alia, a defendant has previously been deported after "a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months." Perez's June 1999 conspiracy conviction, which carried a 57-month sentence, fits this description. The language of § 2L1.2 simply requires that the offense be "a felony," not "a felony punishable under the Controlled Substances Act," and it is only with the meaning of the latter term that Lopez was concerned. 549 U.S. at 50, 127 S.Ct. 625. We conclude that the district court properly calculated Perez's Guidelines range, including the 16-level enhancement pursuant to § 2L1.2(b)(1)(A). We also conclude that the district court properly considered each of the factors in § 3553(a).
We further conclude that Perez waived any objection to the presentence report's use of police reports, as he failed to raise an objection in the district court. See United States v. Rizzo, 349 F.3d 94, 99 (2d Cir. 2003) ("[I]f a defendant fails to challenge factual matters in the presentence report at the time of sentencing, the defendant waives the right to contest them on appeal."). Furthermore, because Perez did not object to the PSR at sentencing, the district court was entitled to accept the PSR as undisputed fact. See Fed.R.Crim.P. 32(i)(3)(A).
Finally, we conclude that Perez's sentence is substantively reasonable. The district court did not abuse its discretion in concluding that a sentence of 70 months, the bottom end of the Guidelines range, was appropriate, given: (1) Perez's criminal record, including his previous conviction for illegal reentry, and the failure of a 57-month sentence for that offense to deter Perez from illegally reentering the United States a second time; and (2) the other factors enumerated in § 3553(a).
We have considered all of Perez's other claims, and we find them to be without merit. Accordingly, the judgment of conviction and the sentence are AFFIRMED.