UNITED STATES OF AMERICA, Appellee, v. ANTONIO ORTIZ, AKA SEALED DEFENDANT 1, AKA PITO, Defendant-Appellant.
No. 22-1775
United States Court of Appeals FOR THE SECOND CIRCUIT
DECIDED: APRIL 30, 2024
AUGUST TERM 2023; SUBMITTED: SEPTEMBER 20, 2023
Before: CALABRESI, MENASHI, and PÉREZ, Circuit Judges.
Defendant-Appellant Antonio Ortiz was accused of repeatedly raping his teenage daughter while completing a term of supervised release for a drug-trafficking conviction. Following a two-day evidentiary hearing, the district court found that Ortiz had committed three release violations, each pertaining to the rapes. The district court revoked Ortiz‘s term of supervised release, sentenced him to the statutory maximum of sixty months of imprisonment, and ordered that this sentence be served consecutively to any state court sentence he might receive. On appeal, Ortiz argues that he received ineffective assistance of counsel at the evidentiary hearing and that the sentence the district court imposed was procedurally and substantively unreasonable. We disagree and affirm the judgment of the district court.
Matthew R. Shahabian, Madison Reddick Smyser, and Stephen J. Ritchin, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Randall D. Unger, Kew Gardens, NY, for Defendant-Appellant.
MENASHI, Circuit Judge:
Defendant-Appellant Antonio Ortiz appeals from a judgment of the district court revoking his term of supervised release and sentencing him to sixty months of imprisonment. Following a two-day evidentiary hearing, the district found that Ortiz had violated the conditions of his supervised
Ortiz asks us to vacate the district court‘s judgment of revocation and imposition of the statutory maximum sentence for two reasons. First, Ortiz argues that he received constitutionally ineffective assistance from his counsel at the evidentiary hearing. Ortiz testified at the hearing that he would have been physically incapable of raping his daughter because of injuries he sustained in three prior motorcycle accidents. On appeal, he contends that his counsel failed to present medical evidence that would have corroborated that testimony. Second, Ortiz argues that the sixty-month sentence is procedurally and substantively unreasonable because the district court failed to explain its rationale for the sentence and ignored the parsimony clause of
We are not persuaded. To prevail on a claim of ineffective assistance of counsel, Ortiz “must demonstrate both ‘that counsel‘s performance was deficient’ and ‘that the deficient performance prejudiced the defense.‘” Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Ortiz has not shown—even assuming that his counsel‘s performance was deficient—that the purportedly deficient performance prejudiced his defense. We also conclude that the rationale for the sentence is evident from the record and that—especially because this case concerns a violation of supervised release rather than a plenary sentencing—the district court did not abuse its discretion by imposing it. We affirm the judgment of the district court.
BACKGROUND
Ortiz participated in a drug-trafficking organization that sold and distributed narcotics to locations in New York, Massachusetts, and Pennsylvania. He was arrested on March 20, 2013, and charged with two counts of conspiracy to distribute heroin, cocaine, and oxycodone, among other narcotics, in violation of
After serving most of his sentence, the Bureau of Prisons released Ortiz to home detention on March 21, 2018. He completed his prison sentence in home detention and began serving his term of supervised release on June 11, 2018.
On February 3, 2022, the Probation Office submitted a violation report to the district court. The report alleged six violations of the terms of Ortiz‘s supervised release. Three of those violations—the “Rape Specifications“—concerned allegations that Ortiz repeatedly raped his daughter from May 18, 2018, when she was sixteen years old, to April 12, 2019, when she was seventeen.1 Ortiz was forty-three and forty-four years old at the time.
Ortiz‘s trial counsel called defense witnesses and submitted photographs and videos as defense exhibits. Ortiz testified about three motorcycle accidents he had suffered in the past and the injuries that had resulted. The defense introduced photographs of these injuries and questioned Ortiz about how the injuries limited his ability to move. Ortiz maintained that the injuries rendered him physically incapable of raping his daughter. But on cross examination, he conceded that even after the accidents, he continued to drive a motorcycle, play handball, detail cars, walk without a cane, and dance. Ortiz also admitted that he continued to have sex after the accidents. In particular, Ortiz admitted that he had sex with his wife on the same air mattress where a number of the rapes occurred, during the time period in which the rapes occurred, while his daughter was asleep next to them.
After the evidentiary hearing, the district court found that Ortiz had committed the three Rape Specifications. The district court said that it found the victim “in the main and in all the material respects to be credible based on my assessment of her demeanor, the manner in which she answered, and corroborating evidence.” Id. at 397. The district court also found the corroborating witnesses to be “highly credible in all material respects.” Id.
The district court rejected the defense‘s argument that Ortiz was physically incapable of raping his daughter due to injuries from the motorcycle accidents. There was no objective medical evidence that the injuries made it impossible for him to have sexual intercourse, the district court noted, and “[t]he very fact that he had intercourse with his wife, which he admits out of his own mouth, is virtually entirely inconsistent with his impossibility theory.” Id. at 400. The district court observed that while Ortiz may have had pain from his injuries, pain “is a relative thing” that “people tolerate ... all the time for various reasons,” and “[h]aving sex may well be one of the reasons one would tolerate a certain level of pain.” Id.
After finding that Ortiz had committed the Rape Specifications, the district court proceeded to sentencing. To determine the appropriate sentence, the district court heard again from Ortiz, his daughter, and his wife. The government asked for the statutory maximum sentence of sixty months for violating the terms of supervised release, see
The district court revoked Ortiz‘s term of supervised release, sentenced him to the sixty-month maximum—a sentence of three months above Ortiz‘s guidelines range of forty-six to fifty-seven months—and ordered that the sentence be served consecutively to an anticipated state court sentence. The term of imprisonment would be followed by five years of supervised release, with the same conditions that applied during the term that was revoked—and the additional condition that Ortiz have no contact with his daughter or her mother. Ortiz timely appealed.
DISCUSSION
Ortiz argues that he was denied effective assistance of counsel during the evidentiary hearing because his counsel purportedly made “no effort to secure medical evidence that would have corroborated” Ortiz‘s testimony that he was physically incapable of raping his daughter due to his motorcycle injuries. Appellant‘s Br. 18. He further argues that the sentence imposed was procedurally and substantively unreasonable because the district court did not adequately explain its rationale for the sentence. We address each argument in turn.
I
We have often “refrained from considering an ineffective assistance claim on direct appeal” when “there has been no opportunity to fully develop the factual predicate for the ineffective assistance of counsel claim.” United States v. Montague, 67 F.4th 520, 540 (2d Cir. 2023) (internal quotation marks and alterations omitted). Under such circumstances, a “‘motion brought under [
A defendant claiming ineffective assistance of counsel must make two showings. First, “the defendant must show that counsel‘s representation fell below an objective standard of reasonableness” under “prevailing professional norms” such that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687-88. Second, the defendant must “affirmatively prove prejudice” from the deficient performance such that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 693-94. In considering these requirements, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.
Although the inquiry includes both “the performance component” and “the prejudice component,” it is not necessary for “a court deciding an ineffective assistance claim” to “address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697. As relevant here, “a court need not determine whether counsel‘s performance was deficient before
In this case, Ortiz cannot establish prejudice. He contends that his trial counsel “fail[ed] to present medical evidence to show that he was physically incapable of raping or sexually abusing his daughter” and “made no effort to secure medical evidence that would have corroborated Ortiz‘s testimony.” Appellant‘s Br. 2, 18. In particular, Ortiz argues that his trial counsel should have “ascertained the names of the medical providers who treated Ortiz and called them to testify to the physical limitations which resulted from his injuries.” Id. at 21. Ortiz does not identify any medical providers who should have been approached, what those providers would have said, or how the testimony would have supported Ortiz‘s impossibility theory.
But even if medical evidence or testimony were presented to corroborate Ortiz‘s testimony, the outcome of the hearing would have been the same. Such corroboration would not have overcome Ortiz‘s own admission that after all three of his motorcycle accidents, he continued to ride motorcycles, play handball, walk without a cane, dance, detail cars, and have sex. Most importantly, Ortiz testified that he had sex with his wife on the same air mattress where the alleged rapes occurred, during the same time period in which the rapes occurred, while his daughter was asleep on the mattress next to them. He thereby conceded that he was able and willing to engage in sexual activity at the same time and under the same conditions as the alleged rapes. Even if medical evidence had corroborated his testimony that he had suffered injuries, it could not have established that it was impossible for Ortiz to have engaged in the alleged conduct.
Ortiz‘s own testimony convinced the district court that his impossibility defense was baseless. The district court explained that “[t]he very fact that he had intercourse with his wife, which he admits out of his own mouth, is virtually entirely inconsistent with his impossibility theory.” App‘x 400. Even if Ortiz had injuries that caused some level of pain, the district court concluded, “[h]aving sex may well be one of the reasons one would tolerate a certain level of pain.” Id.
Because of Ortiz‘s admission at the hearing, there is no “reasonable probability” that medical evidence or testimony would have changed the district court‘s decision such that the lack of such evidence or testimony is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.2
II
Ortiz next insists that, even putting aside his counsel‘s performance, the sentence the district court imposed was “procedurally and substantively unreasonable.” Appellant‘s Br. 27. We disagree.
“Sentences for violations of supervised release are reviewed under ‘the same standard as for sentencing generally:
A
Congress has specified that a sentencing court, “at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence,” including “the specific reason for the imposition of a sentence different from that described” in the guidelines.
A sentence is procedurally unreasonable if the district court “fails adequately to explain the chosen sentence” as
While the district court “must adequately explain the chosen sentence to allow for meaningful appellate review,” Gall, 552 U.S. at 50, that standard is met when “the record as a whole satisfies us that the judge ‘considered the parties’ arguments and had a reasoned basis for exercising his own legal decisionmaking authority,‘” Chavez-Meza v. United States, 585 U.S. 109, 119 (2018) (alteration omitted) (quoting Rita, 551 U.S. at 356). Because Ortiz failed to raise a procedural objection at the time of sentencing, we review his claim of procedural unreasonableness for plain error. See United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008).3
In this case—especially in light of the lesser specificity required for a sentence for the violation of supervised release—the record as a whole establishes that the district court considered the parties’ arguments and had a reasoned basis for imposing the particular sentence. While
We think the record makes clear why the district court imposed the sentence it did. The district court found that Ortiz repeatedly raped his teenage daughter while completing a term of supervised release for an underlying drug-trafficking conviction. In choosing the sentence, the district court relied on the seriousness of the offense, Ortiz‘s inability to refrain from criminal activity, and his breach of the district court‘s trust.
It is often “sufficient for purposes of appellate review that the judge simply relied upon the record, while making clear that he or she has considered the parties’ arguments and taken account of the
We see no plain error that warrants resentencing. “[A]ppellate courts retain broad discretion in determining whether a remand for resentencing is necessary.” Molina-Martinez v. United States, 578 U.S. 189, 204 (2016). A remand in this case would require the district court to augment the reasons for the sentence already apparent in the record. But “[s]entencing is a responsibility heavy enough without our adding formulaic or ritualized burdens.” Cavera, 550 F.3d at 193. “[W]e do not require district courts to engage in the utterance of ‘robotic incantations’ when imposing sentences,” Smith, 949 F.3d at 66 (quoting United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007)), and we decline to do so here.
B
Ortiz further contends that the sentence was substantively unreasonable because the district court “effectively ignored the parsimony clause contained in
We will vacate a sentence as substantively unreasonable “only in exceptional cases where the trial court‘s decision cannot be located within the range of permissible decisions, that is, when sentences 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. Aldeen, 792 F.3d 247, 255 (2d Cir. 2015) (internal quotation marks and citations omitted). “[O]ur review of a sentence for substantive reasonableness is particularly deferential,” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012), because we must “take into account the totality of the circumstances, giving due deference to the sentencing judge‘s exercise of discretion, and bearing in mind the institutional advantages of district courts,” Cavera, 550 F.3d at 190.
We see no reason to reverse the district court‘s sentence here. The district court found that Ortiz began raping his teenage daughter two months after he was released from prison. He raped her while her mother slept beside them, under circumstances involving coercion and threats designed to conceal his abuse. As explained above, we do not agree that the district court failed to provide an explanation for the sentence. In any event, the five-year sentence—only three months above the guidelines range—does not “constitute a ‘manifest injustice’ or ‘shock the conscience‘” because it is not “shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123-24 (2d Cir. 2009).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.