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United States v. Genao

United States Court of Appeals, Second Circuit

August 28, 2017

United States of America, Appellee,
Roman Bartolo Genao Defendant-Appellant.

          Argued: February 27, 2017

          Michael T. Keilty (Emily Berger, on the brief), Assistant United States Attorneys, for Bridget M. Rohde, Acting United States Attorney, Eastern District of New York, Brooklyn, NY, for Appellee.

          Allegra Glashausser, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

          Before Katzmann, Chief Judge, Lynch and Chin, Circuit Judges.


         Defendant-appellant Roman Bartolo Genao appeals from a sentence and final judgment of conviction entered on March 24, 2016, by the United States District Court for the Eastern District of New York (Sterling Johnson Jr, J.). Genao was convicted of illegally reentering into the United States after having been deported. At sentencing, the district court applied a 16-level enhancement for a prior conviction of a "crime of violence" under § 2L1.2(b)(1)(A)(ii) (2015) of the United States Sentencing Guidelines, and sentenced Genao to 46 months' imprisonment. We agree with Genao that the Pre-Sentence Report ("PSR") misidentified one of his prior convictions and that, at least in the absence of further explanation or findings not made by the district court, no prior conviction of Genao's that was before the court could support the enhanced sentence. We therefore VACATE Genao's sentence and REMAND his case to the district court for de novo resentencing.

         Roman Bartolo Genao appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson Jr, J.), sentencing him to 46 months in prison upon his plea of guilty to a charge of illegally attempting to reenter the United States after having been deported. He argues that his sentence was procedurally unreasonable because the district court did not correctly calculate the sentencing range recommended by the United States Sentencing Guidelines and to give a sufficient explanation for the sentence imposed. He also argues that his sentence was substantively unreasonable because it was excessive under the circumstances. Because we find merit in Genao's procedural arguments, we VACATE the sentence and REMAND to the district court for de novo resentencing.


         In 2009, Genao, a national of the Dominican Republic and a long-term lawful permanent resident of the United States, was convicted in New York state court of first-degree burglary and first-degree robbery. According to the Presentence Investigation Report ("PSR") prepared by the United States Probation Office in connection with the present case, police reports described the 2009 crime as a home invasion in which Genao "pushed his way into the victim's home, grabbed her by the hair, placed a knife against her throat, and demanded money, " obtaining $1, 200 in cash and a signed check for $4, 000 payable to cash, and later "called the victim via telephone, and told her that if she called the police or anyone else, he would kill her family and burn down her home." PSR ¶ 24. Genao received a six-year prison sentence, and, after completing his term of incarceration in February 2015, was deported and told that he could not return to the United States. Genao attempted to reenter the United States on August 23, 2015 by flying via commercial airline to New York City, but was detained upon arrival. He was indicted for illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and pleaded guilty to the offense on November 19, 2015.

         The PSR prepared in connection with Genao's sentencing did not accurately describe the charges on which he had been convicted in the prior New York case. Although the PSR correctly stated that Genao had been convicted under New York Penal Law § 140.30(3) for first-degree burglary with a dangerous instrument, it incorrectly identified Genao's robbery conviction as one of second-degree robbery of a motor vehicle under New York Penal Law § 160.10(3), when his actual crime of conviction was first-degree robbery with a dangerous instrument under New York Penal Law § 160.15(3). The precise nature of the conviction was relevant to the calculation of Genao's Guidelines sentencing range: relying on the incorrect robbery conviction, the PSR calculated that Genao's base offense level of 8 should be increased by 16 levels on the basis that second-degree robbery under New York law is a "crime of violence" warranting an enhanced sentence under the version of the Guidelines then in effect. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). [1] This 16-level enhancement, coupled with his criminal history category of III, and a three-level credit for accepting responsibility for the offense, raised his advisory Guidelines sentencing range to 46-57 months of imprisonment, as compared to the 18-24 month advisory range Genao would have been accorded based on the 8-level enhancement for "a conviction of an aggravated felony" that was not a "crime of violence." Id. § 2L1.2(b)(1)(C) (2015).

         Defense counsel objected to the 16-point enhancement both orally and in writing, arguing that the robbery was not a crime of violence because robbery under New York law requires only de minimis use of force. At the sentencing hearing, the sentencing judge responded skeptically, asking, "[H]e put a knife to the throat of a victim, had her deposit a $4, 000 check into his account. You say that's not a crime of violence?" App. 31. Characterizing the application of the enhancement as "an academic issue, " defense counsel reminded the court that under the categorical approach, the sentencing court must "not look at the actual facts but look at the facts that the least culpable person could commit if they were sentenced to that crime." App. 31-32. As explained in more detail below, to determine whether a prior offense is a "crime of violence" that requires application of a sentencing enhancement, the sentencing judge is to consider only the necessary elements of the statutory definition of the crime, rather than the facts particular to the defendant's conduct. See United States v. Reyes, 691 F.3d 453, 458 (2d Cir. 2012) (describing the necessary inquiry for determining whether predicate offense is a "crime of violence" under the analogous career offender guidelines, U.S.S.G. § 4B1.2).Without explanation, the sentencing court rejected defense counsel's arguments on the crime of violence issue, added the 16-point enhancement, and determined that the Guidelines range was 46-57 months. The court then stated, without further elaboration, that it had "consider[ed] the factors of 3553(a)" and sentenced Genao to a term of imprisonment of 46 months, a $100 special assessment, and three years' supervised release. App. 36.


         Genao now appeals his prison sentence, which he contends is both procedurally and substantively unreasonable.

         I. Procedural Unreasonableness

         We turn first to Genao's procedural unreasonableness claim. A district court commits procedural error "when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence." United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal citation and quotation marks omitted). "A district court may not presume that a Guidelines sentence is reasonable; it must instead conduct its own independent review of the sentencing factors, aided by the arguments of the prosecution and defense." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (footnote omitted).

         Genao argues that his sentence was procedurally unreasonable because the district court, over the explicit objection of defense counsel, incorrectly applied the 16-level enhancement, and because "the district court fell short of satisfying the basic requirements of § 3553(c) [when] it provided no reason for its choice of sentence, " Def. Br. at 24, an objection Genao concedes he did not raise below.[2]In this case, the two issues somewhat overlap, insofar as our review of the Guideline calculation is hampered by the fact that the sentencing court did not explain the reasons for its application of the 16-level enhancement, or for its rejection of Genao's argument based on the categorical approach.

         A. ...

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