United States v. Rendon-Reyes

1

United States of America, Appellee, v. Francisco Rendon-Reyes, Defendant-Appellant. ^[*]

No. 20-446

United States Court of Appeals, Second Circuit

May 10, 2023

UNPUBLISHED OPINION

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 10^th day of May, two thousand twenty-three.

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

FOR APPELLEE: Kevin Trowel, Gabriel K. Park, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT: Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY.

PRESENT: GUIDO CALABRESI, MICHAEL H. PARK, STEVEN J. MENASHI Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the restitution judgment of the district court is VACATED and REMANDED.

Francisco Rendon-Reyes operated an international sex-trafficking ring with his family. He pleaded guilty to racketeering in violation of 18 U.S.C. § 1962(c) and to interstate prostitution of Jane Doe #10 in violation of 18 U.S.C. § 2422(a). At his plea hearing, Rendon-Reyes allocuted to two predicate racketeering acts: participation in the sex trafficking of Jane Doe #2 in violation of 18 U.S.C. § 1591(a)(1), (a)(2), and the interstate prostitution of Jane Doe #10 in violation of 18 U.S.C. § 2422(a). The district court (Korman, J.) proceeded to sentence Rendon-Reyes to 108 months' imprisonment. The district court and both parties believed that restitution was mandatory under either 18 U.S.C. § 3663A or 18 U.S.C § 1593.^[1] The district court thus imposed restitution in the amount of $157,500. On appeal, the parties agree that restitution was not mandatory, and that the district court plainly erred in failing to recognize its discretion. We thus vacate the district court's restitution order and remand for further proceedings.^[2]

First, the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, does not mandate restitution in this case. As relevant here, the statute applies "in all sentencing proceedings for convictions . . . relating to charges for[] any offense that is . . . a crime of violence," as defined in 18 U.S.C. § 16. 18 U.S.C. § 3663A(c)(1). 18 U.S.C. § 16(a), in turn, defines "crime of violence" to include "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another."^[3] In determining whether an offense of conviction falls within that definition, "we consider the offense generically, that is to say . . . in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Kondjoua v. Barr, 961 F.3d 83, 87 (2d Cir. 2020) (per curiam).

The government concedes that neither of Rendon-Reyes's offenses of conviction are crimes of violence. "RICO offenses are to be judged violent or not depending on the underlying pattern of racketeering alleged in the particular case." United States v. Martinez, 991 F.3d 347, 358 (2d Cir. 2021) (citing United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009)); accord United States v. Laurent, 33 F.4th 63, 87-88 (2d Cir. 2022) (affirming that this approach remains "good law"). Here, neither of Rendon-Reyes's two racketeering predicates was itself a crime of violence. A defendant can violate both 18 U.S.C. § 1591(a) and 18 U.S.C. § 2422(a) without "the use, attempted use, or threatened use of physical force."^[4] 18 U.S.C. § 16(a). For that reason, Rendon-Reyes's conviction under section 2422(a) was also not a crime of violence. Indeed, Rendon-Reyes allocuted to no use or threatened use of force at his plea hearing.

The Mandatory Victims Restitution Act also allows parties to stipulate to mandatory restitution in a plea agreement. See 18 U.S.C. § 3663A(a)(3), (c)(2). But it is undisputed that Rendon-Reyes's plea agreement included no such provision.

Second, 18 U.S.C. § 1593 does not mandate restitution in this case. Under this provision, "the [sentencing] court shall order restitution for any offense under this chapter"-i.e., Title 18, Part I, Chapter 77 of the United States Code. 18 U.S.C. § 1593(a). The parties agree that Rendon-Reyes was convicted of no such offense; rather, his offenses of conviction are located within Chapters 96 and 117.

We thus vacate the district court's restitution order due to its assumption that restitution was mandatory. On remand, the district court may consider whether restitution is nevertheless warranted under 18 U.S.C. § 3663, which provides for discretionary restitution.^[5] For the foregoing reasons, the restitution judgment of the district court is VACATED and REMANDED.

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[*] The Clerk of Court is respectfully directed to amend the caption accordingly.

^[1] Rendon-Reyes's plea agreement cited 18 U.S.C. §§ 3663A, 3664, while the government's sentencing and restitution submissions cited 18 U.S.C. § 1593. The district court's proposed restitution order, which it later adopted without objection did not cite either statute.

^[2] The Court previously summarily affirmed all other aspects of Rendon-Reyes's conviction and sentence following his counsel's filing of a brief under Anders v. California, 386 U.S. 738 (1967), and the government's motion for summary affirmance.

^[3] 18 U.S.C. § 16(b) adds "any other offense that is a felony and that, by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," but the government affirmatively waived any argument predicated on that subsection. See Appellee's Br. at 15 (noting that "consistent with Department of Justice policy, the...