United States of America v. BYRON CARDOZO

Boston, MA - Criminal defense lawyer represented defendant with a cyberstalking and making interstate threats charge.

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

- 3 -

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

- 4 -

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

1 To the extent Cardozo alludes to other arguments about his

criminal history that he did not raise below, we agree with the

government that they are waived for a lack of adequate development.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

("[I]ssues averted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.").

- 5 -

alternative community placement program." Due to Covid-19,

Cardozo has not yet been able to participate in the RDAP program.

Nothing in the record indicates that the recommendation

to RDAP factored into the length of the sentence imposed, and postsentencing developments are rarely appropriate for our

consideration on direct appeal. United States v. Mateo, 271 F.3d

11, 15 (1st Cir. 2001). This is especially the case where

restrictions caused by the pandemic are constantly changing and

the current status of the RDAP program is not in the record.

In sum, Cardozo's mid-range Guidelines sentence does not

lie "outside the expansive boundaries that surround the universe

of reasonable sentences." United States v. Fuentes-Moreno, 954

F.3d 383, 396 (1st Cir. 2020). We find the sentence to be

substantively reasonable.

Cardozo's restitution appeal is premature. At the time

of sentencing, the district court did not set the amount of

restitution, and the final judgment indicates restitution is "to

be determined." Although the court later entered an order on

restitution, the judgment was not amended nor was a further notice

of appeal filed pertaining to the restitution order. "[A]

defendant who wishes to appeal an order imposing restitution in a

deferred restitution case must file a notice of appeal from that

order"; a notice of appeal filed after the initial judgment is

insufficient and does not "spring forward" to cover the later

- 6 -

restitution award. Manrique v. United States, 137 S. Ct. 1266,

1272, 1274 (2017).

Because the final judgment was never amended in this

case, there is no final restitution order from which the defendant

may appeal. 18 U.S.C. § 3664(o)(1)(B) ("sentence that imposes an

order of restitution is a final judgment"). We dismiss this

portion of the appeal as premature and direct the district court

to file an amended judgment incorporating the restitution award,

at which point Cardozo may file a notice of appeal from the amended

judgment if he so choses.

AFFIRMED in part, DISMISSED in part.