United States v. Ortiz

22-1775
United States v. Ortiz
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2023
No. 22-1775
UNITED S TATES OF AMERICA,
Appellee,
v.
ANTONIO O RTIZ , AKA S EALED D EFENDANT 1, AKA P ITO,
Defendant-Appellant.
On Appeal from the United States District Court
for the Southern District of New York
S UBMITTED: SEPTEMBER 20, 2023
D ECIDED: APRIL 30, 2024
Before: C ALABRESI , MENASHI, and PÉREZ , Circuit Judges.
Defendant-Appellant Antonio Ortiz was accused of repeatedly
raping his teenage daughter while completing a term of supervised
release for a drug-trafficking conviction. Following a two-day
evidentiary hearing, the district court found that Ortiz had committed
three release violations, each pertaining to the rapes. The district court
revoked Ortiz’s term of supervised release, sentenced him to the

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statutory maximum of sixty months of imprisonment, and ordered
that this sentence be served consecutively to any state court sentence
he might receive. On appeal, Ortiz argues that he received ineffective
assistance of counsel at the evidentiary hearing and that the sentence
the district court imposed was procedurally and substantively
unreasonable. We disagree and affirm the judgment of the district
court.
Matthew R. Shahabian, Madison Reddick Smyser, and
Stephen J. Ritchin, Assistant United States Attorneys, for
Damian Williams, United States Attorney for the
Southern District of New York, New York, NY, for
Appellee.
Randall D. Unger, Kew Gardens, NY, for Defendant-
Appellant.
MENASHI , Circuit Judge:
Defendant-Appellant Antonio Ortiz appeals from a judgment
of the district court revoking his term of supervised release and
sentencing him to sixty months of imprisonment. Following a two-
day evidentiary hearing, the district found that Ortiz had violated the
conditions of his supervised release by repeatedly raping his teenage
daughter over a period of approximately eleven months. The rapes
began two months after Ortiz’s release from prison, when the victim
was sixteen.
Ortiz asks us to vacate the district court’s judgment of
revocation and imposition of the statutory maximum sentence for two
reasons. First, Ortiz argues that he received constitutionally

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ineffective assistance from his counsel at the evidentiary hearing.
Ortiz testified at the hearing that he would have been physically
incapable of raping his daughter because of injuries he sustained in
three prior motorcycle accidents. On appeal, he contends that his
counsel failed to present medical evidence that would have
corroborated that testimony. Second, Ortiz argues that the sixty-
month sentence is procedurally and substantively unreasonable
because the district court failed to explain its rationale for the sentence
and ignored the parsimony clause of 18 U.S.C. § 3553(a).
We are not persuaded. To prevail on a claim of ineffective
assistance of counsel, Ortiz “must demonstrate both ‘that counsel’s
performance was deficient’ and ‘that the deficient performance
prejudiced the defense.’” Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Ortiz has
not shown—even assuming that his counsel’s performance was
deficient—that the purportedly deficient performance prejudiced his
defense. We also conclude that the rationale for the sentence is
evident from the record and that—especially because this case
concerns a violation of supervised release rather than a plenary
sentencing—the district court did not abuse its discretion by
imposing it. We affirm the judgment of the district court.
BACKGROUND
Ortiz participated in a drug-trafficking organization that sold
and distributed narcotics to locations in New York, Massachusetts,
and Pennsylvania. He was arrested on March 20, 2013, and charged
with two counts of conspiracy to distribute heroin, cocaine, and
oxycodone, among other narcotics, in violation of 21 U.S.C. § 841 and
§ 846. On December 15, 2015, the district court sentenced Ortiz to

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seventy-two months of imprisonment, to be followed by five years of
supervised release.
After serving most of his sentence, the Bureau of Prisons
released Ortiz to home detention on March 21, 2018. He completed
his prison sentence in home detention and began serving his term of
supervised release on June 11, 2018.
On February 3, 2022, the Probation Office submitted a violation
report to the district court. The report alleged six violations of the
terms of Ortiz’s supervised release. Three of those violations—the
“Rape Specifications”—concerned allegations that Ortiz repeatedly
raped his daughter from May 18, 2018, when she was sixteen years
old, to April 12, 2019, when she was seventeen.1 Ortiz was forty-three
and forty-four years old at the time.
The evidentiary hearing on the Rape Specifications began on
June 28, 2022. The government presented a detailed and extensive
case, including testimony from the daughter, testimony from
corroborating witnesses, and documentary evidence. The
government established that, over an eleven-month period beginning
shortly after moving in with his daughter, his wife, and his wife’s
mother in May 2018, Ortiz raped his daughter on a regular basis. See
1 Specifications Two, Three, and Four related to the rapes. Specification
Two alleged that Ortiz committed incest in the third degree in violation of
New York State Penal Code § 255.25. Specification Three alleged that Ortiz
committed rape in the third degree in violation of New York State Penal
Code § 130.25(2). And Specification Four alleged that Ortiz committed the
crime of endangering the welfare of a child in violation of New York State
Penal Code § 260.10(1). The other three alleged violations—relating to
unauthorized out-of-state travel, failure to notify the Probation Office about
a change of residence, and use of marijuana—were ultimately severed from
the hearing on the other specifications and are not at issue in this appeal.

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App’x 213-71. A friend of the daughter, her college boyfriend, and the
director of a program at her college each testified and corroborated
the daughter’s testimony. The government also introduced
documentary exhibits, including records from the Federal Bureau of
Prisons, records from a hotel where the last rape occurred, and notes
from the Probation Office. In addition, the district court took judicial
notice of the presentence report from Ortiz’s earlier case.
Ortiz’s trial counsel called defense witnesses and submitted
photographs and videos as defense exhibits. Ortiz testified about
three motorcycle accidents he had suffered in the past and the injuries
that had resulted. The defense introduced photographs of these
injuries and questioned Ortiz about how the injuries limited his
ability to move. Ortiz maintained that the injuries rendered him
physically incapable of raping his daughter. But on cross
examination, he conceded that even after the accidents, he continued
to drive a motorcycle, play handball, detail cars, walk without a cane,
and dance. Ortiz also admitted that he continued to have sex after the
accidents. In particular, Ortiz admitted that he had sex with his wife
on the same air mattress where a number of the rapes occurred,
during the time period in which the rapes occurred, while his
daughter was asleep next to them.
After the evidentiary hearing, the district court found that Ortiz
had committed the three Rape Specifications. The district court said
that it found the victim “in the main and in all the material respects
to be credible based on my assessment of her demeanor, the manner
in which she answered, and corroborating evidence.” Id. at 397. The
district court also found the corroborating witnesses to be “highly
credible in all material respects.” Id.

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The district court rejected the defense’s argument that Ortiz
was physically incapable of raping his daughter due to injuries from
the motorcycle accidents. There was no objective medical evidence
that the injuries made it impossible for him to have sexual intercourse,
the district court noted, and “[t]he very fact that he had intercourse
with his wife, which he admits out of his own mouth, is virtually
entirely inconsistent with his impossibility theory.” Id. at 400. The
district court observed that while Ortiz may have had pain from his
injuries, pain “is a relative thing” that “people tolerate … all the time
for various reasons,” and “[h]aving sex may well be one of the reasons
one would tolerate a certain level of pain.” Id.
After finding that Ortiz had committed the Rape Specifications,
the district court proceeded to sentencing. To determine the
appropriate sentence, the district court heard again from Ortiz, his
daughter, and his wife. The government asked for the statutory
maximum sentence of sixty months for violating the terms of
supervised release, see 18 U.S.C. § 3583(b)(1), based on “the nature of
the offense” and Ortiz’s “egregious breach of the Court’s trust while
on supervised release,” App’x 418-19. In finding that Ortiz had
committed the Rape Specifications, the district court itself had
emphasized the “horror of what was done to her,” Ortiz’s extensive
criminal history, the “likelihood that Ortiz just does what he wants to
do,” and Ortiz’s lack of credibility. Id. at 404-05.
The district court revoked Ortiz’s term of supervised release,
sentenced him to the sixty-month maximum—a sentence of three
months above Ortiz’s guidelines range of forty-six to fifty-seven
months—and ordered that the sentence be served consecutively to an
anticipated state court sentence. The term of imprisonment would be
followed by five years of supervised release, with the same conditions
that applied during the term that was revoked—and the additional

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condition that Ortiz have no contact with his daughter or her mother.
Ortiz timely appealed.
DISCUSSION
Ortiz argues that he was denied effective assistance of counsel
during the evidentiary hearing because his counsel purportedly made
“no effort to secure medical evidence that would have corroborated”
Ortiz’s testimony that he was physically incapable of raping his
daughter due to his motorcycle injuries. Appellant’s Br. 18. He further
argues that the sentence imposed was procedurally and substantively
unreasonable because the district court did not adequately explain its
rationale for the sentence. We address each argument in turn.
I
We have often “refrained from considering an ineffective
assistance claim on direct appeal” when “there has been no
opportunity to fully develop the factual predicate for the ineffective
assistance of counsel claim.” United States v. Montague, 67 F.4th 520,
540 (2d Cir. 2023) (internal quotation marks and alterations omitted).
Under such circumstances, a “‘motion brought under [28 U.S.C.]
§ 2255 is preferable to direct appeal for deciding claims of ineffective
assistance’ because it allows for a decision on a developed record.” Id.
(quoting Massaro v. United States, 538 U.S. 500, 504 (2003)). However,
“we may decide these claims on direct appeal when the factual record
is fully developed and resolution of the Sixth Amendment claim on
direct appeal is beyond any doubt or in the interest of justice.” United
States v. Bodnar, 37 F.4th 833, 845 (2d Cir. 2022) (internal quotation
marks omitted). In this case, the record is developed and the
resolution of the claim is beyond doubt.
A defendant claiming ineffective assistance of counsel must
make two showings. First, “the defendant must show that counsel’s

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representation fell below an objective standard of reasonableness”
under “prevailing professional norms” such that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687-88. Second, the defendant
must “affirmatively prove prejudice” from the deficient performance
such that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 693-94. In considering these requirements, “[t]he
benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” Id. at 686.
Although the inquiry includes both “the performance
component” and “the prejudice component,” it is not necessary for “a
court deciding an ineffective assistance claim” to “address both
components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697. As relevant here, “a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” Id. The Supreme Court has instructed that “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course
should be followed.” Id.
In this case, Ortiz cannot establish prejudice. He contends that
his trial counsel “fail[ed] to present medical evidence to show that he
was physically incapable of raping or sexually abusing his daughter”
and “made no effort to secure medical evidence that would have
corroborated Ortiz’s testimony.” Appellant’s Br. 2, 18. In particular,
Ortiz argues that his trial counsel should have “ascertained the names
of the medical providers who treated Ortiz and called them to testify

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to the physical limitations which resulted from his injuries.” Id. at 21.
Ortiz does not identify any medical providers who should have been
approached, what those providers would have said, or how the
testimony would have supported Ortiz’s impossibility theory.
But even if medical evidence or testimony were presented to
corroborate Ortiz’s testimony, the outcome of the hearing would have
been the same. Such corroboration would not have overcome Ortiz’s
own admission that after all three of his motorcycle accidents, he
continued to ride motorcycles, play handball, walk without a cane,
dance, detail cars, and have sex. Most importantly, Ortiz testified that
he had sex with his wife on the same air mattress where the alleged
rapes occurred, during the same time period in which the rapes
occurred, while his daughter was asleep on the mattress next to them.
He thereby conceded that he was able and willing to engage in sexual
activity at the same time and under the same conditions as the alleged
rapes. Even if medical evidence had corroborated his testimony that
he had suffered injuries, it could not have established that it was
impossible for Ortiz to have engaged in the alleged conduct.
Ortiz’s own testimony convinced the district court that his
impossibility defense was baseless. The district court explained that
“[t]he very fact that he had intercourse with his wife, which he admits
out of his own mouth, is virtually entirely inconsistent with his
impossibility theory.” App’x 400. Even if Ortiz had injuries that
caused some level of pain, the district court concluded, “[h]aving sex
may well be one of the reasons one would tolerate a certain level of
pain.” Id.
Because of Ortiz’s admission at the hearing, there is no
“reasonable probability” that medical evidence or testimony would
have changed the district court’s decision such that the lack of such

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evidence or testimony is “sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.2
II
Ortiz next insists that, even putting aside his counsel’s
performance, the sentence the district court imposed was
“procedurally and substantively unreasonable.” Appellant’s Br. 27.
We disagree.
“Sentences for violations of supervised release are reviewed
under ‘the same standard as for sentencing generally: whether the
sentence imposed is reasonable.’” United States v. Brooks, 889 F.3d 95,
100 (2d Cir. 2018) (quoting United States v. McNeil, 415 F.3d 273, 277
(2d Cir. 2005)); see also United States v. Degroate, 940 F.3d 167, 174 (2d
Cir. 2019). This reasonableness review “encompasses two
components: procedural review and substantive review,” which we
conduct “under a ‘deferential abuse-of-discretion standard.’” United
States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)).
A
Congress has specified that a sentencing court, “at the time of
sentencing, shall state in open court the reasons for its imposition of
the particular sentence,” including “the specific reason for the
imposition of a sentence different from that described” in the
guidelines. 18 U.S.C. § 3553(c)(2). When the district court imposes a
2 Ortiz relies on Foster v. Lockhart, 9 F.3d 722 (8th Cir. 1993), in which the
Eighth Circuit concluded that a defendant had been prejudiced by his
counsel’s failure to pursue an impotency defense. But Ortiz himself
acknowledged that the motorcycle accidents did not leave him sexually
dysfunctional, so no corroborating evidence would have established that he
was.

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sentence for the violation of the terms of supervised release—as it did
in this case—“the degree of specificity required for the reasons behind
[the] sentence is less than that for plenary sentencing.” United States
v. Smith, 949 F.3d 60, 66 (2d Cir. 2020).
A sentence is procedurally unreasonable if the district court
“fails adequately to explain the chosen sentence” as § 3553(c)
requires. United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012). But
“the ‘statement’ requirement of § 3553(c) sets a low threshold.” United
States v. Rosa, 957 F.3d 113, 119 (2d Cir. 2020). The district court “need
not engage in a prolonged discussion of its reasoning, especially if the
matter is conceptually simple.” United States v. Robinson, 799 F.3d 196,
202 (2d Cir. 2015). “The appropriateness of brevity or length,
conciseness or detail, when to write, what to say, depends upon
circumstances.” Rita v. United States, 551 U.S. 338, 356 (2007). We have
said that “[d]etermining what is required in any particular case is a
matter firmly committed to the district court’s discretion.” United
States v. Davis, 82 F.4th 190, 196 (2d Cir. 2023).
While the district court “must adequately explain the chosen
sentence to allow for meaningful appellate review,” Gall, 552 U.S. at
50, that standard is met when “the record as a whole satisfies us that
the judge ‘considered the parties’ arguments and had a reasoned basis
for exercising his own legal decisionmaking authority,’” Chavez-Meza
v. United States, 585 U.S. 109, 119 (2018) (alteration omitted) (quoting
Rita, 551 U.S. at 356). Because Ortiz failed to raise a procedural
objection at the time of sentencing, we review his claim of procedural
unreasonableness for plain error. See United States v. Verkhoglyad, 516
F.3d 122, 128 (2d Cir. 2008).3
3 There are “four prongs of plain error analysis: (1) there must be an error;
(2) the error must be plain, meaning it must be clear or obvious, rather than

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In this case—especially in light of the lesser specificity required
for a sentence for the violation of supervised release—the record as a
whole establishes that the district court considered the parties’
arguments and had a reasoned basis for imposing the particular
sentence. While deliberating on the sentence, the district court heard
from and questioned Ortiz, the victim, and the victim’s mother. The
government asked for the maximum sentence based on “the nature of
the offense” and Ortiz’s “egregious breach of the Court’s trust while
on supervised release.” App’x 418-19. The district court emphasized
the “horror of what was done to her,” Ortiz’s criminal history, the
“likelihood that Ortiz just does what he wants to do,” and Ortiz’s lack
of credibility because there is “no reason to suppose that Ortiz is a
truth teller.” Id. at 404-05.
We think the record makes clear why the district court imposed
the sentence it did. The district court found that Ortiz repeatedly
raped his teenage daughter while completing a term of supervised
release for an underlying drug-trafficking conviction. In choosing the
sentence, the district court relied on the seriousness of the offense,
Ortiz’s inability to refrain from criminal activity, and his breach of the
district court’s trust.
It is often “sufficient for purposes of appellate review that the
judge simply relied upon the record, while making clear that he or
she has considered the parties’ arguments and taken account of the
§ 3553(a) factors.” Chavez-Meza, 585 U.S. at 116. “[M]ore explanation
subject to reasonable dispute; (3) the error must have affected the
appellant’s substantial rights in that it affected the outcome of the
proceedings; and (4) if these other three prongs are satisfied, the court of
appeals has the discretion to remedy the error if the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.”
Montague, 67 F.4th at 528 (internal quotation marks and alteration omitted).

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may be necessary” based on “the legal arguments raised at
sentencing,” id., but Ortiz did not raise legal arguments against the
government’s proposed sentence. Instead, Ortiz’s counsel said that
Ortiz “does love his daughter. … He is a family man. He has tried to
work. There’s no question he has injuries. There is no question, based
on his prior [history], that he has some depression issues and some
mental health issues.” App’x 408. His counsel urged the district court
to “consider that he has throughout reported to probation when he
was supposed to and that he has made efforts to behave, other than I
understand this offense,” and that Ortiz “will face a more substantial
sentence in Nassau County.” Id. at 409. Ortiz himself simply stated
that “[t]he only thing I would like to say is I did not do this and that I
love my daughter.” Id. at 410. Given the record before the district
court and the “circumstances” of Ortiz’s violation of the terms of his
supervised release, Rita, 551 U.S. at 356, we do not believe that these
assertions necessitated more explanation than the district court
provided.
We see no plain error that warrants resentencing. “[A]ppellate
courts retain broad discretion in determining whether a remand for
resentencing is necessary.” Molina-Martinez v. United States, 578 U.S.
189, 204 (2016). A remand in this case would require the district court
to augment the reasons for the sentence already apparent in the
record. But “[s]entencing is a responsibility heavy enough without
our adding formulaic or ritualized burdens.” Cavera, 550 F.3d at 193.
“[W]e do not require district courts to engage in the utterance of
‘robotic incantations’ when imposing sentences,” Smith, 949 F.3d at 66
(quoting United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007)), and
we decline to do so here.

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B
Ortiz further contends that the sentence was substantively
unreasonable because the district court “effectively ignored the
parsimony clause contained in 18 U.S.C. § 3553(a)” when it failed to
“provide an explanation for the chosen sentence.” Appellant’s Br. 31.
The parsimony clause provides that the sentencing court must
“impose a sentence sufficient, but not greater than necessary, to
comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see
United States v. Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006) (“[I]f a
district court were explicitly to conclude that two sentences equally
served the statutory purpose of § 3553, it could not, consistent with
the parsimony clause, impose the higher.”).
We will vacate a sentence as substantively unreasonable “only
in exceptional cases where the trial court’s decision cannot be located
within the range of permissible decisions, that is, when sentences are
so shockingly high, shockingly low, or otherwise unsupportable as a
matter of law that allowing them to stand would damage the
administration of justice.” United States v. Aldeen, 792 F.3d 247, 255 (2d
Cir. 2015) (internal quotation marks and citations omitted). “[O]ur
review of a sentence for substantive reasonableness is particularly
deferential,” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir.
2012), because we must “take into account the totality of the
circumstances, giving due deference to the sentencing judge’s
exercise of discretion, and bearing in mind the institutional
advantages of district courts,” Cavera, 550 F.3d at 190.
We see no reason to reverse the district court’s sentence here.
The district court found that Ortiz began raping his teenage daughter
two months after he was released from prison. He raped her while
her mother slept beside them, under circumstances involving

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coercion and threats designed to conceal his abuse. As explained
above, we do not agree that the district court failed to provide an
explanation for the sentence. In any event, the five-year sentence—
only three months above the guidelines range—does not “constitute
a ‘manifest injustice’ or ‘shock the conscience’” because it is not
“shockingly high, shockingly low, or otherwise unsupportable as a
matter of law.” United States v. Rigas, 583 F.3d 108, 123-24 (2d Cir.
2009).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.

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