United States v. Bonilla, No. 09-1799-cr (2d Cir. August 13, 2010) (Miner, Cabranes, Wesley, CJJ)

Five months ago, in United States v. Davis, a Second Circuit panel denied the government’s motion for summary affirmance in a criminal case. Davis held that summary affirmance is a “rare exception” that should only be granted where the issues raised by the appellant are truly frivolous. It also noted that summary affirmance in criminal cases is “particularly perilous.” See, An Exercise in Frivolity, posted March 20, 2010.

Here, with Davis’ ink barely dry, a different panel granted a motion for summary affirmance in a criminal case.


Angel Bonilla pled guilty to illegal reentry, and had a past conviction for felony assault, which triggered the 16-level enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii). At offense level 21 and criminal history category IV, he faced a Guideline sentencing range of 57 to 71 months.

At sentencing, he raised a host of Apprendi issues with respect to the assault conviction and challenged the 16-level enhancement on the grounds that it overstated his potential for dangerousness and resulted in a sentence greater than necessary. He also made a Kimbrough claim, arguing that the Sentencing Commission did not engage in any deliberation or empirical study for enacting the 16-level enhancement, rendering it “arbitrary.”

The district court indicated that it had “reviewed and considered” everything before it - the parties’ memoranda, the PSR, the statutory factors and the Sentencing Guidelines - and sentenced Bonilla to 57 months’ imprisonment. The court also gave an explanation for the sentence, noting that: the 16-level increase did not “overstate the seriousness of the defendant’s prior conviction” given the conduct that underlay it - this was his fourth conviction and his third reentry and he had absconded for several months. Thus, the “people who drafted these sentencing statutes had in mind a person such as this.”

The Circuit’s Decision

On appeal, Bonilla raised two issues. First, he pursued his Apprendi claim, arguing that since his prior felony conviction was neither alleged in the indictment, pled to or proven beyond a reasonable doubt, his statutory maximum was two years, not 10. He also argued that the sentence was procedurally unreasonable because the district court did not adequately consider or respond to his arguments about the 16-level enhancement.

The government moved for summary affirmance, contending that the prior conviction was not an element of the offense and that the district court properly considered and responded to all of Bonilla’s arguments.

The circuit granted the motion, despite acknowledging Davis’ “particularly perilous” language and the circuit’s extremely restrictive definition of “frivolous” - an appeal is frivolous only where it is “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” The court noted that it granted 160 summary affirmance motions associated with Anders briefs in 2009, a statistic that showed that “a fair number of frivolous appeals are filed in this Court.”

In analyzing Bonilla’s claims, even though not raised in an Anders brief, the court found them to be frivolous. The Apprendi claim was easy - Bonilla acknowledged that it was precluded under existing law and that he had raised it only to preserve it for Supreme Court review.

As for the procedural claim, Bonilla’s argument was not that the district court did not adequately explain its sentence; it was that it did not address his Kimbrough argument with respect to the 16-level enhancement with sufficient specificity. But the circuit disagreed. It noted that “it might be said” that the district court’s response was sufficiently specific, but that in the end it did not matter because “we never have required a District Court to make specific responses to points argued by counsel in connection with sentencing.” Here, the court “considered all arguments of counsel and fully stated the reasons for the sentence imposed, and that was all that was required.”

Finally, the court also relied on the “plain-error rule” because Bonilla “did not ask the District Court for a specific response to [the] 16-level enhancement argument” or the argument that the enhancement “was made without the benefit of empirical study.”


This is a very disturbing opinion. Bonilla’s arguments were weak, to be sure, but it is hard to see how they were “totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence.” It might well be that the tension between this case and Davis is going to cause difficulty in future cases for defense attorneys struggling with the question whether to file an Anders brief or a merits brief. This case just is not different enough from Davis for a clear line to emerge.