United States v. Cardozo

UNITED STATES, Appellee, v. BYRON CARDOZO, Defendant, Appellant.

Nos. 20-1318, 20-1398

United States Court of Appeals, First Circuit

August 25, 2021

Not For Publication in West's Federal Reporter

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Allison Burroughs, U.S District Judge]

Marie Theriault for appellant.

Karen Eisenstadt, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

Before Thompson, Selya, and Hawkins, ^[*] Circuit Judges.

PER CURIAM.

Appellant Byron Cardozo ("Cardozo") pled guilty to cyberstalking and making interstate threats in violation of 18 U.S.C. § 2261A(2)(B) and 18 U.S.C. § 875(c). In these sentencing appeals, Cardozo contends that the district court imposed a sentence that was procedurally and substantively unreasonable, and that the court also erred by ordering restitution for legal fees and expenses incurred by one of his victims. We affirm the sentence; the restitution appeal is premature, and we therefore dismiss it without expressing an opinion on the merits. The parties are familiar with the facts, and we do not repeat them here.

We review Cardozo's sentence to ensure the district court did not commit any procedural errors such as "failing to consider the section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." United States v Gierbolini-Rivera, 900 F.3d 7, 12 (1st Cir. 2018). Cardozo's claim of procedural sentencing error is without merit. In making its individualized sentencing determination the district court clearly stated that it considered the section 3553(a) factors, and even specifically listed several of these factors, including the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence to reflect the seriousness of the offense and provide adequate deterrence. Such statements are entitled to "significant weight," especially where, as here, "the record . offers no reason to doubt the judge's word." United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir. 2014). "That the district court did not explicitly mention [mitigating factors argued by the defendant] during the sentencing hearing suggests they were unconvincing, not ignored." United States v. Lozada-Aponte, 689 F.3d 791, 793 (1st Cir. 2012).

Nor is the court's explanation inadequate. The Supreme Court held in Chavez-Meza v. United States that an explanation is adequate if it "satisf[ies] the appellate court that [the court] has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority." 138 S.Ct. 1959, 1963-64 (2018). In an ordinary case with a straightforward application of the Guidelines, this standard is not "onerous" and the court's "reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did." United States v. Robles-Alvarez, 874 F.3d 46, 52 (1st Cir. 2017).

It is apparent from the record that the court here heard and considered the various pros and cons of the sentencing and mitigating factors but ultimately weighed them more heavily in favor of the government. Although Cardozo attempted to distinguish himself from a typical offender on several grounds, the government offered equally compelling reasons to reject these arguments. With respect to Cardozo's argument that his sentence exceeded the nationwide average for cyberstalking, he presented no evidence that those defendants were similarly situated to him. United States v. Rodriguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017). Moreover, the sentencing court has no duty to "address every argument that a defendant advances in support of his preferred sentence," particularly arguments that are not even "potentially forceful." United States v. Rivera-Morales, 961 F.3d 1, 19, 20 (1st Cir. 2020).

Cardozo also argues that the sentence is substantively unreasonable, partially based on his arguments of "overstated criminal history category and the overall circumstances of [his] background" but also due to the "unforeseen and unprecedented global pandemic." His first argument is subsumed within the procedural argument discussed above, as this was a factor the court considered in connection with section 3553(a).^[1] The second refers to the court recommending the residential drug abuse program ("RDAP"), in which the court notes "if he accepts and completes the RDAP program, he will be considered for the Bureau of Prisons alternative community placement program." Due to Covid-19, Cardozo has not yet been able to participate in the RDAP program.

Nothing in the record...