Filed: Oct. 08, 2019
Latest Update: Mar. 03, 2020
Summary: 18-929 United States v. Baires (Merino) 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 “SUMMA
Summary: 18-929 United States v. Baires (Merino) 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 “SUMMAR..
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18‐929
United States v. Baires (Merino)
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 TO 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 8th day of October, two thousand nineteen.
PRESENT:
DENNIS JACOBS
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee,
v. 18‐929
WILBER BAIRES, JOSE BARRERA, KEVIN CARDONA,
RUDY GUEMBES‐LORENA, JOSE CELESTINO GUILLEN‐
RIVAS, CARLOS HERNANDEZ, ABRAHAM IRAHETA,
ALEX MACHADO, NELSON QUINTEROS,
Defendants,
CHRISTIAN MERINO,
Defendant‐Appellant.
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Appearing for Defendant‐Appellant: ALEXANDER E. EISEMAN, New York, NY.
Appearing for Appellee: SUSAN CORKERY (Alixandra E. Smith, on the
brief), for Richard P. Donoghue, United States
Attorney for the Eastern District of New York,
Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Kuntz, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on March 16, 2018, is AFFIRMED.
Defendant‐Appellant Christian Merino appeals from the judgment of the district
court sentencing him principally to a below‐guidelines term of imprisonment of 120
months. Merino, a former leader of the Flushing, Queens clique of MS‐13, entered into a
cooperation agreement with the Government in which he agreed to plead guilty to one
count of racketeering, in violation of 18 U.S.C. § 1962(c), one count of racketeering
conspiracy, in violation of 18 U.S.C. § 1962(d), and one count of discharging a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The superseding
information to which Merino pleaded listed seven racketeering acts consisting of
conspiracy to murder and attempted murder. After the Government submitted a U.S.S.G.
§ 5K1.1 letter noting Merino’s substantial assistance, Merino sought a sentence of time
served, approximately. The district court instead sentenced Merino to 120 months’
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imprisonment. In this appeal that follows Merino challenges only his sentence. We
assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
We review the sentence imposed by a district court for reasonableness, both
procedural and substantive, under a deferential abuse‐of‐discretion standard. United
States v. Cavera,
550 F.3d 180, 187–88 (2d Cir. 2008) (en banc).
Merino insists on appeal that the district court’s explanation of his sentence was
insufficient (procedural error) and that the explanation that was given was insufficient to
support the sentence (substantive error). Regardless of the rubric used, Merino’s
arguments focus primarily on two points. He asserts first that specific deterrence could
not have been a factor here because Merino’s cooperation effectively precluded him from
returning to MS‐13 and a life of crime. Second, he argues that general deterrence was not
furthered where, as here, he, a cooperator, was punished more harshly than were
noncooperating codefendants.
Merino has a point, but it is an insufficient basis on which successfully to challenge
the sentence imposed. True, the district court at one point stated that the sentence served
the goal of specific deterrence by encouraging Merino to sever his ties with MS‐13
without acknowledging that Merino’s cooperation had not only cut him off from future
participation in the gang but had essentially made him and his family the target of MS‐
13 death threats. Yet that statement did not stand alone. The district court also engaged
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in a thorough analysis of the cases relied on by Merino, explaining its view that those
cases did not provide a basis for concluding that Merino’s sentence need not be
determined with an eye to the need for specific deterrence. Those cases, in the district
court’s view, involved situations when the defendant had, as a result of his crimes, lost
his business, thus drastically affecting the defendant’s ability to use that business in the
commission of further crimes. Here, by contrast, the district court explained that
although Merino may end up in witness protection and “is now a pariah to the MS‐13
gang,” Merino has not necessarily “lost all ability to conduct similar illegal activities.”
App. 91. The court’s detailed explanation is more than sufficient and does not
demonstrate an abuse of discretion.
Merino’s second argument, concerning the disparities between Merino’s sentence
and those imposed on codefendants who were allegedly similarly situated, is also
without merit; there is no legal requirement that a court consider, let alone explain,
sentencing disparities among codefendants. United States v. Wills,
476 F.3d 103, 110 (2d
Cir. 2007) (abrogated on other grounds by Kimbrough v. United States,
552 U.S. 85 (2007),
as recognized in United States v. Danilovich, 731 F. App’x 45, 51 (2d Cir. 2018)). Merino
may be correct that his sentence, which was nearly as long as those of each of the
noncooperating codefendants, may serve more as a general deterrent to cooperating than
to gang activity. This result however, is a function of the quantity and seriousness of the
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offenses that Merino pled guilty to, rather than an abuse of discretion on the part of the
district court.
To be sure, Merino raises a potentially interesting possibility: namely, that a
district court might be misled into disfavoring a cooperator – whom the government
requires to plead guilty to a litany of offenses in order to ward off insinuations that the
cooperator was given a sweetheart deal – while codefendants are free to bargain down
the seriousness of the offenses to which they ultimately plead. However, Merino offers
no evidence that the court was misled by the plea‐bargaining process in this case. On the
contrary, during Merino’s sentencing, the district court specifically acknowledged its
authority (pursuant to Section 5K2.21 of the Sentencing Guidelines) to consider “conduct
underlying a charge dismissed as part of a plea agreement” in each case as necessary. At
bottom, the record indicated that Merino received the individualized consideration to
which he was entitled, and derived significant benefits from his cooperation: he received
a downward departure to a sentence 115 months below the bottom of the applicable
guidelines range, and he avoided the otherwise mandatory consecutive 10‐year term for
the § 924(c) count.
Merino’s below‐guidelines sentence of 120 months was neither procedurally nor
substantively unreasonable.
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We have considered Merino’s remaining arguments and find them to be without
merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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