12-537-cr
United States v. Gracesqui

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                       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, at 40 Foley Square, in the City of New York, on
the 25th day of February, two thousand thirteen.

Present: JOHN M. WALKER, JR.,
         ROBERT A. KATZMANN,
                     Circuit Judges,
         LORETTA A. PRESKA,
                     District Judge.*
___________________________________________________

UNITED STATES OF AMERICA

                           Appellee,


                           -v-                                          No. 12-537-cr

JOSE LUIS GRACESQUI, AKA ONEL COLON, AKA
RAMON ORTIZ, AKA LUIS Q. PEREZ,


                     Defendant-Appellant.
___________________________________________________

For Defendant-Appellant:          Yuanchung Lee, Federal Public Defender, New York, N.Y.




       *
          The Honorable Loretta A. Preska, of the United States District Court for the Southern
District of New York, sitting by designation.
For Appellee:                      Zachary Feingold and Andrew L. Fish, Assistant United States
                                   Attorneys, for Preet Bharara, United States Attorney for the
                                   Southern District of New York, New York, N.Y.


      Appeal from the United States District Court for the Eastern District of New York
(Mauskopf, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Jose Luis Gracesqui appeals from a February 8, 2012, judgment of

conviction imposed by the United States District Court for the Eastern District of New York

(Mauskopf, J.), entered following the defendant’s plea of guilty, sentencing him principally to

108 months of imprisonment. We assume the parties’ familiarity with the underlying facts and

procedural history of this case.

       We review a district court’s sentencing decision for unreasonableness under an abuse-of-

discretion standard. Gall v. United States, 

, 51 (2007). Employing that standard, we

“must first ensure that the district court committed no significant procedural error . . . [and] then

consider the substantive reasonableness of the sentence imposed.” 

the district court committed three procedural errors and also imposed a substantively

unreasonable sentence.

       First, Gracesqui contends that the district court erred procedurally when it asserted in its

written statement of reasons (“SOR”) that among the items recovered by law enforcement that

“evidenc[ed] the dangerousness of defendant’s activities” was “seven pounds of marijuana.”

SOR at 3. The parties agree that law enforcement only recovered 1,624 grams (or approximately




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3.58 pounds) of marijuana. The district court recited the latter amount during the sentencing

hearing and used that amount in its offense level computation.

       We hold that the district court’s incorrect recitation in the SOR does not constitute error

because “where there is a direct conflict between an unambiguous oral pronouncement of

sentence and the written judgment and commitment, . . . the oral pronouncement as correctly

reported must control.” United States v. Asuncion-Pimental, 

, 93 (2d Cir. 2002) (per

curiam) (alteration in original) (quoting United States v. Marquez, 

, 622 (2d Cir.

1974)). See United States v. Denny, 

, 422 (6th Cir. 2011) (“[O]ur unwillingness to

allow certain written statements to obfuscate unambiguous reasoning given by a district court at

the oral hearing is related to the fact that the written statement of reasons has a clerical, and not

substantive, origin.”). Here, the amount of marijuana that the district court identified in its oral

pronouncement was correct. Consequently, the district court did not err.

       Second, Gracesqui contends that the district court committed procedural error when it

asserted in the SOR that Gracesqui had “at least twice[] previously associated himself with

activity involving deadly weapons.” SOR at 3. The district court cited as evidence for the

second incident of weapon-related activity the fact that, at the time of sentencing, Gracesqui was

“facing charges for an arrest involving firearms in 1998.” 

did not cite any evidence

of the incident other than the pending charges.

       The district court’s reasoning was contrary to our precedent. “[A]n indictment is not

evidence of guilt . . .; it is only a finding of probable cause that a crime has been committed.”

United States v. Juwa, 

, 700 (2d Cir. 2007) (quoting United States v. Romano, 706




                                                  

, 374 (2d Cir. 1983)). At sentencing, “the burden of proof on the government is a

preponderance of the evidence,” and a finding of probable cause does not meet that burden. 

to the prescription 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.” 

consequently erred when it

relied on the pending charges against Gracesqui as one of the bases for Gracesqui’s sentence.

       Nonetheless, we will not vacate the sentence. The district court made the same error at

the sentencing hearing. Because Gracesqui failed to object at sentencing, we review his claim

for plain error. See United States v. Zillgitt, 

, 131 (2d Cir. 2002). Gracesqui must

demonstrate that: “(1) there is an error; (2) the error is clear or obvious, rather than subject to

reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary

case means it affected the outcome of the district court proceedings; and (4) the error seriously

affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v.

Marcus, 

, 2164 (2010) (internal quotation marks omitted).

       Gracesqui cannot satisfy the fourth prong of plain error review. After sentencing in this

matter, Gracesqui pleaded guilty in the New York County Supreme Court to a charge of criminal

possession of a weapon in the third degree in violation of New York Penal Law § 265.02. If we

were to vacate the sentence and remand this case, the district court would be entitled to take the

conviction into consideration when re-sentencing the defendant. The error did not seriously

affect the fairness, integrity, or public reputation of judicial proceedings because the sentencing

court on remand properly would consider precisely the fact that was prematurely found by the

sentencing court below.


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       Third, Gracesqui contends that the district court engaged in unwarranted speculation

when it concluded that the items found in his car and apartment demonstrated that his criminal

activity was serious and dangerous. We disagree. The district court drew the reasonable

inference that Gracesqui’s drug business was serious and dangerous from the weapons,

ammunition, protective gear, and accessories to evade detection found in Gracesqui’s vehicle

and home. While a sentencing court must depend on reliable facts, it need not refrain from

drawing inferences based on those facts. See, e.g., United States v. Jones, 

, 175 (2d

Cir. 2008) (holding that a sentencing court may infer the quantity of drugs involved in an offense

from the established facts, such as the amount of cash proceeds); United States v. Khedr, 

, 102 (2d Cir. 2003) (“[A] district court is entitled to rely on circumstantial evidence and

on all reasonable inferences that may be drawn from all of the evidence” in order to determine a

defendant’s intent for the purpose of the obstruction-of-justice enhancement.).

       Finally, Gracesqui contends that his sentence was substantively unreasonable because

this case involved a relatively small quantity of marijuana, a single firearm, and a defendant who

had no criminal history points and who accepted responsibility for the offense by pleading

guilty. This argument fails to consider the factors on which the district court relied in upwardly

varying Gracesqui’s sentence. Gracesqui does not take into account the tools for violence and

protection from violence that Gracesqui kept in his car and apartment, the multiple false

identities that Gracesqui had adopted, or that Gracesqui’s past criminal activity involved at least

one gun crime. The district court distinguished Gracesqui’s case, and the factors on which the

district court based that distinction “can bear the weight assigned to” them. United States v.

Cavera, 

, 191 (2d Cir. 2008) (en banc).


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       We have considered Gracesqui’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED, except insofar as

we hereby REMAND to the court for amendment of the judgment form as set forth above.

                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




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