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Date: 10-17-2021
Case Style:
United States of America v. BYRON CARDOZO
Case Number: 20-1318
20-1398
Judge: PER CURIAM
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Karen Eisenstadt, Assistant United States Attorney, with
whom Nathaniel R. Mendell, Acting United States Attorney
Defendant's Attorney:
Description:
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
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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
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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.").
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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
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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.
Outcome: AFFIRMED in part, DISMISSED in part.
Plaintiff's Experts:
Defendant's Experts:
Comments: