UNITED STATES v. BARRERA (2021)

United States Court of Appeals, Second Circuit.2021-02-09No. No. 20-966

Summary · law.co

Holding. The appellate court affirmed the district court's judgment, finding no procedural error in the sentencing where the district court expressly declined to consider dismissed narcotics charges despite Barrera's claim otherwise.

Emilio Alejandro Barrera pleaded guilty to illegally reentering the United States after removal following an aggravated felony conviction and received a 24-month prison sentence. On appeal, Barrera contended that his sentence was procedurally unreasonable because the district court improperly relied on dismissed narcotics charges during sentencing, citing precedent that bars using unsubstantiated charges as a basis for punishment.

The appellate court first determined that Barrera had preserved his objection by raising it promptly in the district court, warranting review under the traditional abuse-of-discretion standard rather than plain error review. Examining the sentencing record, the court found no procedural error because the district court explicitly stated it would not consider the dismissed narcotics charges. The court concluded that Barrera misread the transcript, which merely reflected clarification of the government's position rather than any judicial reconsideration or reliance on those charges.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether dismissed charges may be considered as a basis for sentencing
Preservation of objections to sentencing procedures
Standard of review for procedural reasonableness of sentences
Proper interpretation of sentencing hearing transcripts

Procedural posture

Barrera appealed his March 2020 conviction and 24-month sentence for illegal reentry following removal after an aggravated felony conviction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

SUMMARY ORDER

Defendant-Appellant Emilio Alejandro Barrera appeals from a judgment of conviction entered on March 9, 2020, by the district court. On October 30, 2019, Barrera pleaded guilty to one count of illegally reentering the United States following removal subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The district court sentenced Barrera principally to 24 months in prison. We assume the readers familiarity with the record and issues in this case.

Barrera argues that his sentence is procedurally unreasonable because the district court based its sentencing analysis in part on dismissed narcotics charges. He cites United States v. Juwa, in which this Court held that, “at sentencing, an indictment or a charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed.” 508 F.3d 694, 701 (2d Cir. 2007).

In reviewing the procedural reasonableness of a criminal sentence, this Court generally uses “a deferential abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018). Here, however, the Government asks the Court to review Barreras argument for plain error, the standard of review applicable to claims of error not raised in the district court. See United States v. Rosa, 957 F.3d 113, 117 (2d Cir. 2020) (“We review for plain error where ․ the defendant failed to raise [an] objection below.”). We conclude that Barrera adequately preserved his objection below by protesting as soon as the district court first mentioned the charges at issue, triggering an extensive discussion between the Government and the district court on the propriety of considering the charges at sentencing. Accordingly, we apply our traditional abuse-of-discretion standard to Barreras claim.

Even under this usual standard, there was no procedural error. The district court expressly declined to consider the narcotics charges at issue. Barrera mischaracterizes the sentencing transcript in claiming that the court subsequently changed its mind. The transcript reflects only an exchange in which the district court clarified the Governments position regarding consideration of the charges, not its own view. The courts statements did not suggest that it was giving any weight to the dismissed narcotics charges.

We have considered Barreras remaining arguments and conclude that they are without merit. For the foregoing reasons, the order of the district court is AFFIRMED.