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United States of America v. Carlos Echeverri

May 17, 2013

UNITED STATES OF AMERICA, APPELLEE,
v.
CARLOS ECHEVERRI, ALSO KNOWN AS C4P3T069@GMAIL.COM, ALSO KNOWN AS CAPETO69@YAHOO.COM, ALSO KNOWN AS CAPE266@HOTMAIL.COM, ALSO KNOWN AS CAPETO66@HOTMAIL.COM, ALSO KNOWN AS CARLOS MILLAN, ALSO KNOWN CARPETIN69@YAHOO.COM, C4B3TCO69@GMAIL.COM, DEFENDANT-APPELLANT.



Appeal from the amended judgment of the United States District Court for the Eastern District of New York, imposed May 17, 2012, and filed May 31, 2012 (Sterling Johnson, Jr., Judge).

12-2574-cr

United States v. Echeverri

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of May, two thousand thirteen.

PRESENT: PIERRE N. LEVAL, JOSE A. CABRANES, BARRINGTON D. PARKER, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the cause be REMANDED to the District Court (Sterling Johnson, Jr., Judge) with instructions to vacatethe amended sentence and to resentence the defendant.

Defendant Carlos Echeverri was convicted, after entering a plea of guilty, of receipt and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(b). In his first appeal of his sentence, he argued that the District Court provided insufficient explanation of its chosen sentence. We agreed and vacated his sentence and remanded for resentencing. He now brings a second appeal, arguing that procedural defects in his resentencing proceeding require us, once again, to vacate and remand for resentencing. Once again, we must agree. We assume familiarity with the underlying facts and procedural history of this case.

BACKGROUND

On January 20, 2010, Echeverri pleaded guilty, without a plea agreement, to one count of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2), and to one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On December 20, 2010, at his first sentencing, the District Court denied Echeverri's request for a below-Guidelines sentence. Instead, the court determined that "a sentence that is sufficient but not greater than necessary to address this particular crime is the low end of the guideline." Joint App'x 66. The court imposed a prison sentence of 97 months, which was the bottom of what both parties agreed was the correct Guidelines range.

Echeverri then appealed, "argu[ing] that the sentence must be vacated because the district court conducted no independent analysis of the sentencing factors and Guidelines enhancements and failed to give specific reasons for imposing the sentence." United States v. Echeverri, 460 F. App'x 54, 55 (2d Cir. 2012). We concluded that "the district court did not provide any additional reasons for its chosen sentence," and therefore "'fail[ed] adequately to explain its chosen sentence.'" Id. at 56 (quoting United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)). We emphasized that, in light of our decision in United States v. Dorvee, 616 F.3d 174, 185-86 (2d Cir. 2010), a sentencing court must take particular care "to independently evaluate the enhancements in his particular case" relating to child pornography. Echeverri, 460 F. App'x at 56. Accordingly, we vacated Echeverri's sentence and remanded to the District Court for resentencing.

At resentencing, the District Court stated that "[t]his case was remanded from the Court of Appeals with instructions for the Court to adequately explain its chosen sentence, which I will do." Joint App'x 100. The District Court proceeded to explain its Guidelines calculus in detail and resentenced Echeverri to 97 months in prison. At the conclusion of the proceeding, the government asked the court to "comment briefly on why this chosen sentence is correct, in addition to the Guidelines calculation." Id. at 104-05. The court responded:

I've consulted 3553(a), recognizing that the Guidelines are advisory, and I think that some of the reasons, like 3553(a)(2)(a), talks about the sentence is supposed to reflect the seriousness of the offense. And 3553(a)(2)(b) is supposed to afford deterrence for criminal conduct.

And here, the defendant possessed a video lasting longer than five minutes, which is an aggravating factor itself. The defendant showed images involving ropes and binding, that the ...


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