United States v. Pichardo, (2nd Cir. 2008)
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07-2769-cr
United States v. Pichardo
06-cr-964
S.D.N.Y.
Sweet, J.
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)." A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY
PARTY NOT REPRESENTED BY COUNSEL 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/). 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, at 500 Pearl Street, in the City of New York,
on the 6th day of August, two thousand and eight.
PRESENT:
HON. SONIA SOTOMAYOR,
HON. JON O. NEWMAN,
HON. RICHARD C. WESLEY,
Circuit Judges.
United States of America,
Appellee,
-v.- No. 07-2769-cr
Esteban Luis Diaz Pichardo,
Defendant-Appellant.
For Defendant-Appellant: DARRELL B. FIELDS, Federal Defenders of New York,
Inc..
For Appellee: LOYAAN A. EGAL, Assistant United States Attorney (Jonathan S. Kolodner, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Esteban Luis Diaz Pichardo appeals from the June 7, 2007 judgment of the United States District Court for the Southern District of New York (Sweet, J.), convicting him, following a guilty plea, of illegally entering the United States following deportation subsequent to a conviction for an aggravated felony, and sentencing him to a term of 57 months in prison followed by two years of supervised release. We assume the parties' familiarity with the underlying facts and procedural history of the case.
Diaz-Pichardo does not challenge the procedure by which the district court determined his sentence. Instead, he argues that his sentence was substantively unreasonable because it was greater than necessary to achieve the purpose of 18U.S.C. § 3553 and did not reflect the mitigating circumstances of his case.
Diaz-Pichardo argues that a lower sentence is appropriate because his crimes were not violent and because he reentered the United States to earn money for his sick mother's medical care. The district court considered these mitigating factors but found that because of DiazPichardo's recidivist behavior, a sentence within the Guidelines range was warranted. Therefore, we cannot conclude that the district court's sentence was an abuse of discretion. See Gall v.
United States, 128 S. Ct. 586, 597 (2007) ("Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of discretion standard.") Diaz-Pichardo raises two other arguments for the first time on appeal, which we review for plain error. United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007). First, DiazPichardo argues that the Guidelines sentencing range for illegal reentry offenses is excessive because it is greater than the range applicable to certain violent offenses. This disagreement with the policies reflected in the Guidelines does not establish plain error. Second, Diaz-Pichardo argues that his sentence is unreasonable because it violates § 3553(a)'s dictate to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18U.S.C. § 3553(a)(6). Diaz-Pichardo contends that his sentence would have been lower in a district with a "fast track" program.1 This also does not establish 1 A "fast track program" permits a defendant to receive the probability of a lower sentence in exchange for a decision to plead guilty quickly, to refrain from filing pretrial motions, plain error. "[A] district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable." United States v. Mejia, 461 F.3d 158, 164 (2d Cir. 2006).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By: and to waive his right to appeal or collaterally attack his sentence. A district must be authorized by the Attorney General to offer a "fast track" program.
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