17-1537-cr
United States v. Santiago

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        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 TO 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
28th day of June, two thousand eighteen.

Present:
            RALPH K. WINTER,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                 v.                                                 17-1537-cr

JESUS SANTIAGO,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                   James P. Maguire, Assistant Federal Defender, for
                                           Terry S. Ward, Federal Defender, District of
                                           Connecticut.

For Appellee:                              Patricia Stolfi Collins & Marc. H. Silverman, Assistant
                                           United States Attorneys, for John H. Durham, United
                                           States Attorney, District of Connecticut.




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        Appeal from a judgment of the United States District Court for the District of Connecticut

(Shea, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Jesus Santiago (“Santiago”) appeals from a May 10, 2017 judgment of the United States

District Court for the District of Connecticut, following his plea of guilty to one count of

possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The district court sentenced Santiago to 75 months of imprisonment, followed by a three-year term

of supervised release. Before imposing this sentence, the district court calculated Santiago’s

Sentencing Guidelines range to be 77 to 96 months of imprisonment. In doing so, the district court

determined that, pursuant to U.S.S.G. § 2K2.1(a)(2), Santiago had “committed . . . part of the

instant offense subsequent to sustaining at least two felony convictions of either a crime of violence

or a controlled substance offense.” Id.; see also id. § 4B1.2(a) (defining the term “crime of

violence”); id. § 4B1.2(b) (defining the term “controlled substance offense”). Santiago had

previously sustained a conviction for possession with intent to sell a narcotic or hallucinogenic

substance in violation of Conn. Gen. Stat. § 21a-277(a), and had also previously sustained a

conviction for second-degree robbery in violation of Conn. Gen. Stat. § 53a-135(a)(1). The district

court concluded that the former conviction qualified as a conviction of a “controlled substance

offense,” and that the latter conviction qualified as a conviction of a “crime of violence.” On

appeal, Santiago argues that the district court erred in reaching these conclusions, and thereby

committed procedural error in its Guidelines calculation. Santiago separately argues that his 75-

month sentence is substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.


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       We first conclude that we need not address Santiago’s argument that the district court

committed procedural error in its Guidelines calculation, because even assuming arguendo that

the district court did commit procedural error, any such error was harmless. “If we ‘identify

procedural error in a sentence, but the record indicates clearly that the district court would have

imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to

vacate the sentence and to remand the case for resentencing.’” United States v. Mandell, 752 F.3d

544, 553 (2d Cir. 2014) (per curiam) (quoting United States v. Jass, 569 F.3d 47, 68 (2d Cir.

2009)); accord United States v. Acoff, 708 F. App’x 3, 5 (2d Cir. 2017) (summary order). As the

Supreme Court noted in Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), although “[i]n

most cases a defendant who has shown that the district court mistakenly deemed applicable an

incorrect, higher Guidelines range has demonstrated a reasonable probability of a different

outcome,” there are “instances when, despite application of an erroneous Guidelines range, a

reasonable probability of prejudice does not exist.” Id. at 1346. “The record in a case may show,

for example, that the district court thought the sentence it chose was appropriate irrespective of the

Guidelines range,” and a judge’s explanation of his “reasons [for] the selected sentence . . . could

make it clear that the judge based the sentence he or she selected on factors independent of the

Guidelines.” Id. at 1346–47.

       The district court in Santiago’s case made abundantly clear that it “thought the sentence it

chose was appropriate irrespective of the Guidelines range.” Id. at 1346. The court specifically

noted in Santiago’s written sentence that it “would have imposed the same sentence even if it had

not determined that the [Santiago’s] sale of narcotics conviction was a ‘controlled substance

offense’ and his robbery conviction a ‘crime of violence’ under the Guidelines.” J.A. at 203. The

district court judge emphasized this same point repeatedly during Santiago’s sentencing hearing.


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See, e.g., id. at 194 (“[I]t’s really not the Guidelines that are driving the sentence. . . . Rather,

what’s driving the sentence here is, first, the extended nature of [Santiago’s] criminal record, [his]

pattern of recidivism, the length of previous sentences [he’s] served, and the principle of

incremental sentencing.”); id. at 196 (“I note that I would impose the same sentence even if the

21a-277 conviction was not a controlled substance offense under the Guidelines and/or if the

robbery second was not a crime of violence under the Guidelines.”). Accordingly, “the record

indicates clearly that the district court would have imposed the same sentence” even if it had not

committed the alleged procedural error at issue; any such error is therefore “harmless,” and we

need not “vacate [Santiago’s] sentence.” Mandell, 752 F.3d at 553 (quoting Jass, 569 F.3d at 68).

       We further conclude that Santiago’s sentence was not substantively unreasonable. “We

review a sentence for . . . substantive reasonableness under a ‘deferential abuse-of-discretion

standard.’” United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (quoting Gall v. United States,

552 U.S. 38, 41 (2007)). “Our review for substantive unreasonableness is ‘particularly

deferential.’” Id. (quoting United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)). “We

will identify as substantively unreasonable 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.” Id. (internal quotation marks omitted) (quoting Broxmeyer,

699 F.3d at 289)). “Our review of a sentence for substantive reasonableness is governed by the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Jenkins, 854 F.3d 181, 187 (2d Cir.

2017). “[T]he weight to be afforded any § 3553(a) factor,” however, “‘is a matter firmly committed

to the discretion of the sentencing judge and is beyond our review, as long as the sentence

ultimately imposed is reasonable.’” United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir.

2008) (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006)).


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       Here, the district court judge specifically considered the § 3553(a) factors in his decision,

including “Santiago’s history, his background, and his characteristics,” “the nature and

circumstances of this crime,” and “the purposes of a criminal sentence,” including “punishment,”

“deterrence,” “rehabilitation,” and “protecting the public from further criminal activity.” J.A. at

187–88; see also 18 U.S.C. § 3553(a). The court noted Santiago’s “difficult childhood,” but also

noted his “long criminal record, including drug offenses and violent crimes.” J.A. at 190. The court

also noted that Santiago had already received some lengthy sentences, and that his “criminal

conduct has continued into [his] mid 30s,” and that Santiago therefore showed himself to be a

recidivist. Id. at 190, 193. The court therefore insisted that a lengthy sentence was necessary to

protect the public and serve as a proper deterrent. Id. at 193. The court further noted that Santiago’s

time in prison could help rehabilitate him, and that he could take advantage of programs offered

by the Bureau of Prisons. Id. at 193–94. Finally, the court noted that Santiago possessed a loaded

firearm while travelling in a car, and that, when followed by the police, he “drove recklessly,”

thereby “plac[ing] other people’s lives in danger.” Id. at 192. “[W]e must give due deference to

the district court’s decision that the § 3553(a) factors, on a whole, justify the extent” of any alleged

variance between the sentence imposed and the (properly calculated) sentencing Guidelines range,

and the fact that we “might reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51. We therefore decline to

vacate the district court’s sentencing decision on substantive reasonableness grounds.

                                           *       *       *




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       We have considered Santiago’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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