UNITED STATES v. BARRERA (2021)

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 reader's 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 Barrera's 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 Barrera's 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 Government's position regarding consideration of the charges, not its own view. The court's statements did not suggest that it was giving any weight to the dismissed narcotics charges.

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