USA v. Negron (Silverio), No. 06-3614 (2d Cir. 2008)

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06-3614-cr USA v. Negron (Silverio) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: April 1, 2008 Decided: April 24, 2008) Docket No. 06-3614-cr - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, Appellee, - v.JOSE NEGRON, RAFAEL GONZALES, ANGEL MALDONADO, ALEXIS PRATTS, CHRISTIAN SILVERIO, JOHN RODRIGUEZ, LIONEL PINEIRO, Defendants, JULIO SILVERIO, 1 Defendant-Appellant - - - - - - - - - - - - - - - - - - - -X Before: JACOBS, Chief Judge, KEARSE and POOLER, Circuit Judges. Julio Silverio appeals from an order of the United 1 We direct the Clerk of the Court to amend the official caption to reflect this spelling of Silverio s name. 1 States District Court for the Eastern District of New York 2 (Weinstein, J.), declining to resentence him after a Crosby 3 remand. 4 refusing to consider the terms of a rejected plea offer in 5 which the government had offered to recommend a lower 6 sentence. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Silverio argues that the district court erred in For the following reasons, we affirm. LAWRENCE MARK STERN, New York, NY, for Defendant-Appellant. JEFFREY H. KNOX, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. PER CURIAM: Julio Silverio appeals from an order entered on August 21 2, 2006, in the United States District Court for the Eastern 22 District of New York (Weinstein, J.), declining to 23 resentence him after remand pursuant to United States v. 24 Crosby, 397 F.3d 103 (2d Cir. 2005). 25 argument on this appeal is that the district court 26 erroneously refused to consider the terms of a rejected plea 27 offer in which the government had offered to recommend a 28 lower prison term than ultimately imposed. 2 Silverio s sole We affirm 1 because nothing in 18 U.S.C. § 3553(a) or controlling 2 precedent requires a sentencing court to consider a rejected 3 plea offer. 4 Silverio was one of the ringleaders of a criminal gang 5 that engaged in a series of home and business robberies over 6 an 18-month period. 7 small children, were held hostage and threatened and 8 terrorized at gunpoint until cash and valuables were turned 9 over. The victims, including families with During plea negotiations, the government expressed 10 willingness to enter an agreement under Fed. R. Crim. P. 11 11(e)(1)(C) (2000), which would include a binding sentence 12 recommendation of 17 years imprisonment--notwithstanding an 13 estimated Sentencing Guidelines range of approximately 22 to 14 27 years. 15 offer, believing he might obtain greater leniency from the 16 sentencing judge. 17 that contained no binding sentence recommendation. 18 to that agreement, he was convicted of kidnapping in aid of 19 racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and 20 (2), conspiracy to commit robbery in violation of 18 U.S.C. 21 § 1951, and use of a firearm in furtherance of crimes of 22 violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and Against counsel s advice, Silverio rejected this Silverio later accepted a plea agreement 3 Pursuant 1 (2). 2 incarceration. 3 He was sentenced principally to 272 months of Silverio s initial appeal argued (inter alia) that the 4 district court erred in restricting a downward departure for 5 diminished capacity to a single level. 6 dated May 21, 2004, this Court affirmed the sentence, 7 specifically finding each of Silverio s arguments without 8 merit. 9 Cir. 2004) (unpublished), vacated on other grounds sub nom. By summary order See United States v. Negron, 96 F. App x 788 (2d 10 Silverio v. United States, 543 U.S. 1102 (2005). 11 Subsequently, the Supreme Court vacated that summary order 12 and remanded in light of United States v. Booker, 543 U.S. 13 220 (2005); and this Court remanded to the district court 14 for a Crosby review. 15 1210 (2d Cir. Nov. 15, 2005) (unpublished). 16 May 21, 2004 decision as to the arguments presented in the 17 initial appeal was explicitly made part of our November 15, 18 2005 remand order to the extent it was consistent with 19 Crosby, and thus remains the law of the case. 20 States v. Williams, 475 F.3d 468, 475-76 (2d Cir. 2007). 21 22 See United States v. Silverio, No. 01However, our See United On appeal from the district court s decision following the Crosby remand, Silverio argues that: 4 (a) his rejection 1 of the earlier plea offer was a manifestation of his 2 diminished capacity at the time; and (b) the rejected offer 3 was an acknowledgment by the government that a lesser 4 sentence would have been sufficient. 5 for reasonableness, under an abuse-of-discretion standard, 6 see Gall v. United States, 128 S. Ct. 586, 594 (2007), 7 including when the district court has declined to resentence 8 pursuant to Crosby, see Williams, 475 F.3d at 474. Insofar 9 as Silverio is asserting an error in the extent of the We review a sentence 10 downward departure for diminished capacity in the original 11 sentence, the argument is barred by the law of the case 12 doctrine because it was adjudicated on his direct appeal. 13 See United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 14 2002). 15 The law of the case doctrine will not, however, bar a 16 defendant who is not resentenced after a Crosby remand from 17 challenging the procedures used by the district court during 18 the Crosby remand. 19 district court fully complied with Crosby s procedural 20 requirements, including appropriate consideration of the 21 factors set forth in 18 U.S.C. § 3553(a). 22 3553(a) or controlling precedent requires a district court Williams, 475 F.3d at 476. 5 Here, the Nothing in § 1 to consider a rejected plea offer. See Rita v. United 2 States, 127 S. Ct. 2456, 2465 (2007) ( [The sentencing 3 judge] may hear arguments by prosecution or defense that the 4 Guidelines sentence should not apply . . .. (emphasis 5 added)); cf. United States v. Hamdi, 432 F.3d 115, 124 (2d 6 Cir. 2005) (noting the well-settled legal principle that 7 the sentencing judge is of course not bound by the 8 estimated range in a plea agreement (quoting United States 9 v. Rosa, 123 F.3d 94, 98-99 (2d Cir. 1997))). 10 In any event, the record shows that during the Crosby 11 remand, defense counsel was given full opportunity to make 12 this argument. 13 the sentencing judge has considered all arguments properly 14 presented to [him], unless the record clearly suggests 15 otherwise. 16 was the case here, the sentencing judge makes abundantly 17 clear that [he] has read the relevant submissions and that 18 [he] has considered the § 3553(a) factors. 19 v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006). 20 sentencing decision carefully applied the § 3553(a) factors 21 to Silverio s case, and specifically considered the kinds of 22 sentences available and the location of the sentence within [W]e entertain a strong presumption that This presumption is especially forceful when, as 6 United States The 1 the Guidelines range. The district court declined to 2 resentence Silverio, in large part because of the 3 horrendous and serious nature of the offense. 4 at 27 ( [I]n the overwhelming majority of cases, a 5 Guidelines sentence will fall comfortably within the broad 6 range of sentences that would be reasonable in the 7 particular circumstances. ). 8 court committed no procedural or substantive error. See id. In doing so, the district 9 CONCLUSION 10 11 12 For the foregoing reasons, the order of the district court is affirmed. 7

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