United States v. Aponte-Vellón
754 F.3d 89
1st Cir.
2014
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Docket

UNITED STATES of America, Appellee, v. Cándido Obed APONTE-VELLÓN, a/k/a Obed, Defendant, Appellant.

No. 13-1302

United States Court of Appeals, First Circuit.

June 13, 2014.

senting to the treaty. From this, Hilton infers that his extradition would be violative of his Sixth Amendment right to a jury trial.

As to Hilton‘s first premise, it is well settled that “surrender of an American citizen required by treaty for purposes of a foreign criminal procеeding is unimpaired by an absence in the foreign judicial system of safeguards in all respects equivalent to those constitutionally enjoined upon American trials.”

; accord
. The rule of non-inquiry could not stand otherwise. See
(“Under the rule of non-inquiry, courts refrain from ‘investigating the fairness of a requesting country‘s judicial system‘....” (quoting
)).

Here too Hilton invokes the Gallina exсeption. This argument plainly fails. In

, for example, this court found that extradition of a relator to Hong Kong was consistent with its “sense of decency,” reasoning that the relator was “wanted for activities whose criminality is fully recognized in the United States. His extradition [was] sought by ... a colony of Great Britain, whiсh ... is one of this country‘s most trusted treaty partners.”
. For similar reasons, we find no occasion to apply the Gallina exception here where extradition is sought by a country within the United Kingdom.

As to Hilton‘s second premise, the suggestion that this court may sit in judgment of the Senate in its performance of its adviсe and consent duties is without basis. Hilton cites no case in support of his ambitious conception of the judicial role. This lack of support is unsurprising. For “[t]he conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative-‘the political‘-deрartments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”

; cf.
(observing that, with respect to questions of foreign relations, “it is not material to inquire, nor is it the province of the Court to determine, whether thе executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions, he has decided the question“).

Hilton concedes that the crime charged is covered by the treaty. He does not contest that the Senate consented to the treaty with the requisite number of votes. Sеe U.S. Const. art. II, § 2, cl. 2 (requiring that “two thirds of the Senators present concur“). As to the adequacy of the Senate‘s consent, that is the end of the matter.

IV.

The district court‘s denial of the petition for a writ of habeas corpus is affirmed.

tences of 72 months and 84 months. On appeal, Aponte contends that the district court imрroperly departed upward from the applicable Guidelines sentencing range. Because Aponte in fact received a sentence that varied from the applicable Guidelines ranges, rather than an upward departure under the Guidelines, and because we discern no plain error in the variance, we affirm.

José Luis Novas Debien on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, ‍​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​​​‌​‌‌​​‌​‌‌​‌‌​​​‍Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief, for appellee.

Before TORRUELLA, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

After pleading guilty to robbery and brandishing a firearm during a robbery, Cándido Obеd Aponte-Vellón (“Aponte“) received consecutive incarcerative sentences of 72 months on Count One and 84 months on Count Two, to be served consecutively for a total incarcerative term of 156 months.2 Following imposition of sentence, Aponte objected that the court hаd erred in “depart[ing] upward from the guidelines,” because “[t]he presentence report did not identify any information that would warrant a departure.” The district court responded, “It‘s not a departure. It‘s a variance.” Aponte disagreed, and elaborated that the court needed to first “go by the guidelines, determine if there are any grounds for departure.” The district court reiterated, “[T]his is a variance, and I don‘t have to do that.” This appeal followed.

I.

In 2012, Aponte pleaded guilty to both counts of an indictment charging him and a co-defendant with robbery in violation of 18 U.S.C. §§ 2 and 1951 (Count One) and with knowingly carrying, using, and brandishing firearms during and in relation to the robbery in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A) (Count Two).

After a futile flurry of pro se motions in which Aponte sought, inter alia, withdrawal of his guilty plea and appointment of new counsel, the case proceeded to sentencing in February 2013.1 Following a presentence investigation report (“PSR“) issued in December 2012, the district court calculated an advisory Guidelines sentencing range of 24 to 30 months’ imprisonment for Count One and a consecutive statutory minimum sentence of 84 months’ imprisonment for Count Two. Ultimately, however, the court declined to follow the parties’ recommended 108-month total sеntence due to its concern over the lengthy record of arrests and pending charges set forth in Aponte‘s PSR:

The Court finds ... that the sentence to which the parties agree does not reflect the seriousness of the offense or promote[] respect for the law or protect[] thе public from further crimes by Mr. Aponte.

As part of a sentencing court‘s inquiry, a sentencing judge may consider whether a Defendant‘s criminal history score substantially underrepresents the gravity of his past conduct. That is the case here.

Mr. Aponte‘s record of past arrests or dismissed charges, even thоugh there is an absence of any conviction, indicates a pattern of unlawful behavior.

The district court proceeded to recite the PSR‘s list of pending or dismissed state criminal charges against Aponte, including pending charges of first-degree murder, robbery, and firearm violations. In so doing, it recognized that some of the separately enumerated counts related to the same cases: “Some of those cases are the same, I recognize that.”

II.

On appeal, Aponte raises four initial challenges to his sentence, each resting on the premise that his sentence represented an upward departure under the Guidelines. Specifically, Aponte contends that 1) the court failed to provide advance notice of its intent to depart from the Guidelines range, as required by Federal Rule of Criminal Procedure 32(h)3; 2) the court failed to determine the extent of the departure “by using, as a reference, the criminal history category applicable ‍​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​​​‌​‌‌​​‌​‌‌​‌‌​​​‍to defendants whose criminal history or likelihood to recidivate most closely resembles that of the defendant‘s,” U.S.S.G. § 4A1.3(a)(4); 3) the court failed to set forth in writing “the specific reasons why the applicable criminal history category substantially underrepresents the seriousness of the defendant‘s criminal history or the likelihood that the defendant will commit other crimes,” id. § 4A1.3(c)(1); and 4) the court improperly considered his prior arrest record for purposes of an upward departure, id. § 4A1.3(a)(3). In the alternative, he further avers that his sentence was improper even if construed as a variance because 1) the district court imposed the variant sentence without advance notice under Rule 32(h); and 2) the court failed to state adequate reasons for the variance and improperly relied upon his arrest recоrd, rendering the sentence procedurally unreasonable.

Aponte‘s first four arguments fail for the simple reason that the district court imposed a variant sentence rather than an upward departure. A “departure,” as explained by the Supreme Court, “is a term of art under the Guidelines and rеfers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.”

. Variant sentences, by contrast, were enabled by the invalidation of the mandatory Guidelines regime in
, and result from a court‘s consideration of the statutory sentencing factors enumerated in 18 U.S.C. § 3553(a). See
;
; see also
.

Although the district court explicitly described its sentence as a “variance,” Aponte contends that this nomenclature is not dispositive and that the district court in fact relied on a “classic ground for departure under the guidelines,” to wit, “reliable information indicat[ing] that the defendant‘s criminal history category substantially under-represents the seriousness of the defendant‘s criminal history or the likelihood that the defendant will commit other crimes,” U.S.S.G. § 4A1.3(a)(1).

The district court did indeed echo § 4A1.3(a)(1) in finding that Aponte‘s Guidelines criminal history score “substantially underrepresent[ed] the gravity of his past conduct” due to the pending and dismissed charges set forth in the PSR. But the court later еxplained that it was quoting from our opinion in

, in which we recognized that “[a]s part of [the § 3553(a)(1) ‘history and characteristics’ inquiry], a sentencing judge may consider whether a defendant‘s criminal history score substantially underrepresents the gravity of his past conduct.” Moreover, the court only addressed Aponte‘s arrest record after stating that it had “аlso considered the other sentencing factors set forth in [§ 3553(a)].” Indeed, it specifically found “that the sentence to which the parties agree does not reflect the seriousness of the offense or promote[] respect for the law or protect[] the public from further crimes by Mr. Aponte,” factors properly considered under § 3553(a)(2)(A) & (C).

In short, nothing in the sentencing record persuades us that the district court intended to or in fact applied an upward departure under U.S.S.G. § 4A1.3(a)(1). Even if the court‘s sentencing rationale were ‍​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​​​‌​‌‌​​‌​‌‌​‌‌​​​‍ambiguous—and we do not think that it is—

, teaches that any error in a departure is harmless where the district court would have imposed the same sentence as a variance in any event: “If we find an alleged Guideline error would not have affected the district court‘s sentence, we may affirm.” That is the case here. Even reading the court‘s initial reference to Aponte‘s past arrests as invoking the application of a § 4A1.3(a)(1) upward departure, the court‘s subsequent description of its sentence as a “variance” and its citation to
indicate that the court would have arrived at the same sentence even if a departure were unwarrаnted.

We therefore turn to Aponte‘s alternative assertions that his sentence was improper even as a non-Guidelines variance. The first of these contentions—that Rule 32(h) requires advance notice even in the case of a variance—warrants minimal scrutiny, as that precise argument was flatly rejected by the Supreme Court in

. See
(“The fact that Rule 32(h) remains in effect today does not justify extending its protections to variances....“); see also
(“[T]he Supreme Court, in the post-Booker era, has refused to expand the notice requirement announced in
(codified as Rule 32(h))] beyond the narrow cоnfines of a sentencing departure.” (citing
)). Rule 32(h) therefore placed the district court under no obligation to provide advance notice of the variance.

Aponte finally argues that his variant sentence was procedurally unreasonable because the district court failed tо adequately weigh the § 3553(a) factors and “relied on the incorrect premise of a pattern of unlawful behavior” inferred from Aponte‘s arrest record. Aponte did not raise any such objection below; we accordingly review for plain error only. See

.

In Aponte‘s account of the sentencing, the district court merely “performed by what appears to be rote a recital of [Aponte‘s] past arrests and then after counsel‘s objection for failing to follow the requirements of U.S.S.G. § 4A1.3, then simply invoked the

case and varied substantially without weighing any factors.” Aponte therefore ‍​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​​​‌​‌‌​​‌​‌‌​‌‌​​​‍suggests that the district court failed to give adequate consideration to the § 3553(a) factors. See
(requiring the district court to “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party” and to “make an individualized assessment based on the facts presented“).

We disagree with Aponte‘s characterization of the district сourt‘s sentencing decision. As mentioned above, the court stated that it had considered the § 3553(a) factors, and gave specific attention to “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, ... [and] to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(A)-(C). As we recognized in

, the determination of whether “a defendant‘s criminal history score substantially underrepresents the gravity of his past conduct” is also relevant to “the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1). Admittedly, the district court did not go through each of thе § 3553(a) factors one by one, but our caselaw does not demand such an exhaustive approach. See
(“While the district court‘s explicit acknowledgment of § 3553(a) was brief, we do not require the court to address those factors, one by one, in some sort of rote incantation when explicating its sentencing decision.” (internal quotation marks оmitted)); see also
(“[T]he fact that the court stated that it had considered all the section 3553(a) factors is entitled to some weight.“). We therefore find no plain error in the district court‘s § 3553(a) calculus.

Finally, we also reject Aponte‘s contention that the district court placed too much weight upon his record of pending and dismissed state criminal charges. As we stated in

, “[a] record of past arrests or dismissed charges may indicate a pattern of unlawful behavior even in the absence of any convictions.”
(internal quotation marks omitted); see also
. Aponte‘s PSR set forth three separate incidents of criminal conduct charged in stаte court: dismissed robbery and firearm charges from July 2010; pending aggravated robbery, first-degree murder, and firearm charges, and dismissed harm to a minor charges, from August 2010; and pending robbery and firearm charges from October 26, 2010, hours after the robbery to which Aponte pleaded guilty in this case. It was not plainly errоneous for the district court to have inferred a pattern of malfeasance from three separate incidents in a four-month span.

III.

For the foregoing reasons, we affirm Aponte‘s sentence.

James E. ZALEWSKI, Draftics, Ltd., Plaintiffs-Appellants, v. CICERO BUILDER DEV., INC., Luigi Cicero, T.P. Builders, Inc., Thomas Paonessa, Cillis Builders, Inc., Theodore Cillis, III, Deraven Design & Drafting, Roxanne K. Heller, V.S. Sofia Engineering, Sofia Engineering, PLLC, Vincenzo S. Sofia, Defendants-Appellees.*

Docket Nos. 12-3448-cv, 12-3450-cv, 12-5127-cv.

United States Court of Appeals, Second Circuit.

Argued: Jan. 15, 2014. Decided: June 5, 2014.

Notes

1
Aponte does not press any of these pro se claims on appeal.
2
At sentencing, the district court stated that it was sentencing Aponte to 72 months on Count One and 84 months on Count Two “for a total of 166 months.” In its judgment and commitment order, the district court again imposed consecutive ‍​‌‌‌‌‌‌‌‌​‌‌​​​‌‌‌​​​​​‌‌​​‌‌​​​‌​‌‌​​‌​‌‌​‌‌​​​‍sentences of 72 and 84 months. We therefore assume that the district court simply made a misstatement or erred in its arithmetic at the sentencing hearing, and that the total sentence was in fact 156 months’ imprisonment.
3
Rule 32(h) provides:

Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party‘s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.

*
The Clerk of the Court is respectfully directed to amend the official caption as set forth above.
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