Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Cueto-Nunez

United States Court of Appeals, First Circuit

August 25, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JULIO CUETO-NÚÑEZ, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO Hon. Francisco A. Besosa, U.S. District Judge

          Arza Feldman, Steven A. Feldman, and Feldman and Feldman, on brief for appellant.

          Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Julio Cueto Núñez pled guilty to one count of attempting to enter the United States after previously having been removed from the United States due to an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). Cueto was sentenced to a 57-month term of imprisonment, followed by a 3-year term of supervised release, subject to thirteen so-called "standard" conditions. Cueto now challenges a number of different aspects of his sentence. We affirm.

         I.

         Cueto, a citizen of the Dominican Republic, was removed from the United States in 2010, following his convictions for several offenses including robbery and possession of a weapon without a license in the Superior Court of San Juan, Puerto Rico. More than five years later, on November 8, 2015, a vessel with Cueto (along with sixty other people) on board was apprehended by the United States Coast Guard. Cueto was then transferred into the custody of the United States Border Patrol.

         On November 12, 2015, Cueto was charged with one count of violating 8 U.S.C. § 1326(b)(2), a statute that prohibits an "alien previously removed from the United States subsequent to a conviction for an aggravated felony" from "knowingly and intentionally attempt[ing] to enter the United States" without first having obtained the consent of the Attorney General or the Secretary of Homeland Security "to reapply for admission into the United States." Id. On February 16, 2016, Cueto waived the right to an indictment and, the same day, pled guilty to a one-count information, pursuant to a plea agreement.

         Cueto's plea agreement set forth his base offense level under the United States Sentencing Guidelines as eight, pursuant to U.S.S.G. § 2L1.2(a). The parties then recommended the following adjustments to this proposed base offense level: first, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), a sixteen-point upward adjustment because Cueto was previously removed after a conviction for a crime of violence; second, pursuant to U.S.S.G. § 3E1.1(a) and (b), a three-point downward adjustment for acceptance of responsibility; and third, pursuant to U.S.S.G. § 5K3.1, a two-point downward adjustment because of Cueto's participation in a "fast-track" early disposition program. Thus, the total offense level recommended to the District Court by the parties in the plea agreement was nineteen. The plea agreement did not, however, state Cueto's criminal history category. Instead, the plea agreement set forth a table of recommended sentencing ranges based on Cueto's proposed total offense level of nineteen. As a result, the parties agreed "to recommend a sentence at the lower end of the applicable Guideline Sentencing Range for a total offense level of 19 when combined with [Cueto's] criminal history category as determined by the Court."

         Prior to Cueto's sentencing hearing, the Probation Office prepared a presentence investigation report (PSR). The PSR, too, determined that Cueto's base offense level was eight. And, like the plea agreement, the PSR calculated a total offense level by applying a sixteen-level upward adjustment to the base offense level because of Cueto's prior removal after a conviction for a crime of violence, pursuant to § 2L1.2(b)(1)(A) of the guidelines, and a three-level downward adjustment because of Cueto's acceptance of responsibility and cooperation with authorities, pursuant to § 3E1.1(a) and (b). The PSR, however, did not apply the two-level "fast-track" downward adjustment recommended in the plea agreement. Thus, the PSR determined that Cueto's total offense level was twenty-one. Nevertheless, the PSR did provide that "[a]s the defendant has entered into a plea agreement, " he would "benefit from a two (2) level adjustment for participating in the Fast-Track Program." After examining Cueto's prior conviction record, the PSR then determined that Cueto's criminal history category was IV. On the basis of Cueto's total offense level of twenty-one and criminal history category of IV, the PSR specified that the recommended Guidelines Sentencing Range applicable to Cueto was fifty-seven to seventy-one months of imprisonment.

         Cueto was sentenced on May 10, 2016. At sentencing, the District Court also calculated a base offense level of eight for Cueto, pursuant to U.S.S.G. § 2L1.2(a). In calculating Cueto's total offense level, the District Court then applied a sixteen-level upward adjustment because of Cueto's prior removal after a conviction for a crime of violence, pursuant to § 2L1.2(b)(1)(A) of the guidelines, and a three-level downward adjustment for acceptance of responsibility, pursuant to § 3E1.1(a) and (b) of the guidelines. The District Court, however, declined to apply the "fast-track" downward adjustment, "because of Mr. Cueto's criminal history." Thus, the District Court set Cueto's total offense level at twenty-one. A total offense level of twenty-one, combined with a criminal history category of IV, yielded a guidelines sentencing range of fifty-seven to seventy-one months' imprisonment. Despite the government's advocating a sentence of forty-six months of imprisonment, the District Court sentenced Cueto to a term of imprisonment of fifty-seven months, and a term of supervised release of three years. The term of supervised release was accompanied by the requirement that Cueto observe "the standard conditions of supervised release recommended by the United States Sentencing Commission and adopted by this Court."

         Cueto now appeals both the term of imprisonment and the conditions ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.