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    United States v. Gady Pichardo Hilario, 449 F.3d 500, 2d Cir. (2006)

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    This document summarizes a United States Court of Appeals case from 2006. The defendant, Gady Pichardo Hilario, appealed his sentence of 162 months in prison for conspiring to import ecstasy into the United States. Hilario argued that the district court improperly denied his request for a 4-month reduction for good time credit he claimed he would have earned had he served a previous related 26-month sentence in a U.S. rather than Belgian prison. The appeals court found that the district court did not abuse its discretion in denying this speculative request. It also found that the district court properly considered the sentencing factors in 18 U.S.C. § 3553(a) and did not err in declining to

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    United States v. Gady Pichardo Hilario, 449 F.3d 500, 2d Cir. (2006)

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    This document summarizes a United States Court of Appeals case from 2006. The defendant, Gady Pichardo Hilario, appealed his sentence of 162 months in prison for conspiring to import ecstasy into the United States. Hilario argued that the district court improperly denied his request for a 4-month reduction for good time credit he claimed he would have earned had he served a previous related 26-month sentence in a U.S. rather than Belgian prison. The appeals court found that the district court did not abuse its discretion in denying this speculative request. It also found that the district court properly considered the sentencing factors in 18 U.S.C. § 3553(a) and did not err in declining to

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    Filed: 2006-05-24 Precedential Status: Precedential Citations: 449 F.3d 500 Docket: 05-3972-

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    This document summarizes a United States Court of Appeals case from 2006. The defendant, Gady Pichardo Hilario, appealed his sentence of 162 months in prison for conspiring to import ecstasy into the United States. Hilario argued that the district court improperly denied his request for a 4-month reduction for good time credit he claimed he would have earned had he served a previous related 26-month sentence in a U.S. rather than Belgian prison. The appeals court found that the district court did not abuse its discretion in denying this speculative request. It also found that the district court properly considered the sentencing factors in 18 U.S.C. § 3553(a) and did not err in declining to

    Copyright:

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    72 views3 pages

    United States v. Gady Pichardo Hilario, 449 F.3d 500, 2d Cir. (2006)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case from 2006. The defendant, Gady Pichardo Hilario, appealed his sentence of 162 months in prison for conspiring to import ecstasy into the United States. Hilario argued that the district court improperly denied his request for a 4-month reduction for good time credit he claimed he would have earned had he served a previous related 26-month sentence in a U.S. rather than Belgian prison. The appeals court found that the district court did not abuse its discretion in denying this speculative request. It also found that the district court properly considered the sentencing factors in 18 U.S.C. § 3553(a) and did not err in declining to

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    of 3

    449 F.

    3d 500

    UNITED STATES of America, Appellee,


    v.
    Gady Pichardo HILARIO, Defendant-Appellant.
    Docket No. 05-3972-CR.

    United States Court of Appeals, Second Circuit.


    May 24, 2006.

    Jeremy F. Orden (Bernard V. Kleinman, of counsel), New York, NY, for


    Defendant-Appellant.
    Gurbir S. Grewal, Assistant United States Attorney (Roslynn R.
    Mauskopf, United States Attorney for the Eastern District of New York,
    on the brief; Jo Ann M. Navickas, Assistant United States Attorney, of
    counsel), Brooklyn, NY, for Appellee.
    Before SOTOMAYOR, WESLEY, and HALL, Circuit Judges.
    PER CURIAM.

    Defendant-appellant Gady Pichardo Hilario appeals from a judgment of the


    United States District Court for the Eastern District of New York (Townes, J.)
    convicting him, upon his guilty plea, of conspiring to import the drug
    commonly known as ecstasy into the United States in violation of 21 U.S.C.
    963 and 960(a)(1), and sentencing him principally to 162 months'
    imprisonment, three years of supervised release, and a mandatory special
    assessment of $100. Hilario argues that his sentence is unreasonable because
    the district court improperly denied his downward departure motion seeking
    four months' good time credit for the previously discharged, twenty-six-month
    sentence he served in Belgium on related charges, and because the court failed
    to consider adequately the factors set forth in 18 U.S.C. 3553(a). We disagree.

    A "district court's decision to depart pursuant to U.S.S.G. 5K2.0 . . . is


    discretionary," and thus we review it for abuse of discretion. United States v.
    Fuller, 426 F.3d 556, 562 (2d Cir.2005). In this case, the district court departed
    downward by twenty-six months, the length of Hilario's imprisonment in

    Belgium, pursuant to U.S.S.G. 5K2.23, which permits departures for


    "discharged terms of imprisonment." Hilario argues that because the federal
    statute governing good time credit permits the Bureau of Prisons ("BOP") to
    award inmates up to fifty-four days of good time credit at the end of each year
    of imprisonment, see 18 U.S.C. 3624(b)(1), the district court's downward
    departure should have included all of the good time credit Hilario might have
    earned had he served his twenty-six-month Belgian sentence in federal prison.
    The amount of good time credit earned by a defendant is determined by the
    BOP based on a prisoner's behavior while incarcerated in a BOP-controlled
    environment. Because Hilario was previously incarcerated in a foreign jail, the
    district court did not abuse its discretion in denying a downward departure on
    the basis of Hilario's speculative assertion that he would have earned good time
    credit in a BOP prison had he served his time in such a facility. Cf. United
    States v. Evans, 1 F.3d 654, 654-55 (7th Cir.1993) (holding that the district
    court did not err in refusing to award good time credit against a prisoner's
    federal sentence for time spent in state custody on related charges).
    3

    Hilario further argues that his sentence was unreasonable because the court
    failed to consider adequately the 3553(a) factors. "[W]e presume, in the
    absence of record evidence suggesting otherwise, that a sentencing judge has
    faithfully discharged her duty to consider the statutory factors." United States v.
    Fernandez, 443 F.3d 19, 30 (2d Cir.2006). In this case, the district court
    engaged in a thorough discussion of the 3553(a) factors, explaining that
    Hilario's sentence reflected, inter alia, the nature and circumstances of the
    offense, the history and circumstances of the defendant, the severity of the
    crime, the role played by the defendant, and the need for punishment,
    deterrence, and protection of the public.

    Hilario argues in particular that the district court did not adequately consider the
    need, under 3553(a)(6), to avoid unwarranted sentencing disparities among
    similarly situated defendants. He asserts that because his co-defendant might be
    transferred pursuant to treaty to Belgium, where "anecdotal evidence and past
    experience" suggest that the co-defendant may receive a lesser sentence than he
    would for the same conduct in the United States, the district court should have
    reduced Hilario's sentence to ensure that it was commensurate with his codefendant's probable sentence under Belgian law. Hilario's counsel made this
    argument at sentencing and presents no evidence on appeal that the district
    court failed to consider it. See id. at 30-31 (holding that a defendant must
    adduce record evidence indicating that a district court has failed to consider the
    3553(a) factors in order to overcome the presumption that they were properly
    considered). Whether or not "18 U.S.C. 3553(a)(6) can support a reduced
    sentence designed to eliminate or diminish disparity between the sentences

    imposed on co-defendants," id. at 31, the district court did not abuse its
    discretion when it declined to depart on the basis of Hilario's wholly speculative
    argument that a foreign sovereign might sentence his co-defendant to a lesser
    sentence than would generally be warranted under the United States Sentencing
    Guidelines.
    5

    For the reasons stated above, we AFFIRM the judgment of the district court.

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