17-260 United States v. Perez 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 7th day of December, two thousand eighteen. Present: AMALYA L. KEARSE, DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. 17-260 RAYMUNDO PEREZ, Defendant-Appellant. _____________________________________ For Defendant-Appellant: RANDALL D. UNGER, ESQ., Bayside, NY. For Appellee: EMILY BERGER, MOIRA KIM PENZA, Assistant U.S. Attorneys, for Richard P. Donaghue, 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 (Johnson, J.). 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Raymundo Perez (“Perez”) appeals from a sentence entered on November 1, 2016, in the United States District Court for the Eastern District of New York. Perez pled guilty to illegal reentry after deportation, 8 U.S.C. § 1326(a) and § (b)(2), and upon his request was sentenced to time served—33 months. The applicable Guidelines range was 24 to 30 months. Perez argues that the district court committed procedural error by sentencing him to 33 months without explaining the reasons for the departure from the applicable Guidelines range. Although Perez has already been released from federal custody, he is challenging his sentence because the “length of his sentence ‘could materially affect his prospects of obtaining a discretionary waiver of inadmissibility under section 212(d)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3).’” App. Br. 10–11 (quoting United States v. Mends, 412 F. App’x 370, 374 (2d Cir. 2011)). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We conclude that Perez waived his right to challenge his sentence. If a “party consciously refrains from objecting as a tactical matter, then that action constitutes a true ‘waiver,’ which will negate even plain error review.” United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995). We can find waiver either (1) where a party expressly waives an objection, United States v. Weiss, 930 F.2d 185, 198 (2d Cir. 1991), or (2) where we infer a party’s decision to waive from the circumstances, United States v. Coonan, 938 F.2d 1553, ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals