United States v. Acevedo Garcia, (2nd Cir. 2009)
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08-1305-cr
United States v. Acevedo Garcia
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV), THE
PARTY CITING THE SUMMARY ORDER MUST FILE AND SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED. IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 16 th day of July, two thousand nine.
PRESENT: DENNIS JACOBS,
Chief Judge,
BARRINGTON D. PARKER,
Circuit Judge,
NICHOLAS TSOUCALAS,
Judge, U.S. Court of International
Trade. *
X
UNITED STATES OF AMERICA,
APPELLEE,
-v.- 08-1305-cr
SANTOS ACEVEDO-GARCIA, AKA VICTOR
BELTRAN, AKA BACALAO,
DEFENDANT-APPELLANT. **
X
APPEARING FOR APPELLEE: BRIAN P. LEAMING, Assistant United States Attorney (William J. Nardini, Assistant United States Attorney, on the brief), for Nora R. Dannehy, Acting United States Attorney for the District of Connecticut.
APPEARING FOR DEFENDANT- MICHAEL S. HILLIS, Esq., APPELLANT: Dombroski, Knapsack & Hillis, LLC, New Haven, CT.
Appeal from a judgment of the United States District Court for the District of Connecticut.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the District Court's judgment be AFFIRMED.
Santos Acevedo-Garcia appeals from a judgment of the United States District Court for the District of Connecticut (Thompson, J.) sentencing Acevedo-Garcia to 135 months' imprisonment after he pled guilty to selling firearms without a license in violation of 18U.S.C. § 922(a)(1)(A) and possessing a firearm while a convicted felon in violation of 18U.S.C. § 922(g)(1). When the district court discovered that Acevedo-Garcia had given a false name during his plea colloquy, thereby failing to disclose additional criminal history as well as the fact that he was a fugitive from justice, the district court declined to apply a two level downward adjustment for acceptance of responsibility under United States Sentencing Guidelines (U.S.S.G.) § 3E1.1 and imposed a two-level upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1. On appeal, Acevedo Garcia argues that he is entitled to a two-level downward adjustment. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
"[A] district court's decision not to grant a defendant a Section 3E1.1 adjustment [for acceptance of responsibility] is `entitled to great deference on review.'" United States v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (per curiam) (quoting U.S.S.G. § 3E1.1 cmt. n.5). "Whether the defendant has accepted responsibility is a factual question, and a district court's determination in this regard should not be disturbed unless it is without foundation." Id.
(quotation marks and alterations omitted).
Acevedo-Garcia pled guilty under a false name that obscured his true criminal history. The district court imposed a two-level upward adjustment for obstruction on the basis of that conduct, and Acevedo-Garcia has not challenged the upward adjustment on appeal. "Conduct resulting in an enhancement under § 3C1.1 [for obstruction of justice] ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." U.S.S.G. § 3E1.1 cmt. n.4; see also United States v. Defeo, 36 F.3d 272, 277 (2d Cir. 1994) ("The Guidelines state that it is rare that a defendant should be granted a reduction in offense level for acceptance of responsibility when the court has deemed it appropriate to increase her offense level for obstruction of justice.").
Acevedo-Garcia argues that he is nonetheless entitled to a downward adjustment for acceptance of responsibility.
He argues that the district court failed to consider the fact that he chose to plead guilty rather than force the government to proceed to trial. But "[a] guilty plea does not, by itself, entitle a defendant to a reduced sentence under § 3E1.1." United States v. Irabor, 894 F.2d 554, 557 (2d Cir. 1990); see also U.S.S.G. § 3E1.1 cmt. n.3 ("A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right."). Nor has Acevedo-Garcia identified any circumstance that would render his case one of those "extraordinary cases" mentioned in Note 4 to § 3E1.1 in which a downward adjustment for acceptance of responsibility is warranted notwithstanding the imposition of an upward adjustment for obstruction of justice. Instead, Acevedo-Garcia merely argues that the district court failed to engage in an adequate analysis of whether the case was extraordinary. But a defendant who seeks to take advantage of a sentencing adjustment bears the burden of establishing his entitlement thereto, see United States v. Smith, 174 F.3d 52, 55-56 (2d Cir. 1999), and Acevedo-Garcia's failure to identify any facts that would render his case extraordinary defeats his claim that the district court erred when it declined to grant the downward adjustment.
Accordingly, we hereby AFFIRM the judgment of the district court.
FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK By:
* The Honorable Nicholas Tsoucalas, Senior Judge of the United States Court of International Trade, sitting by designation. ** The Clerk of Court is directed to amend the official caption as indicated.
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