Reaffirming the Prophylactic Rule Against National-Origin-Based Sentencing:
Commentary on United States v. Santibanez Cardona & Montoya Garcia

I. Introduction

This commentary analyzes the Second Circuit’s December 11, 2025 summary order in United States v. Juan Felipe Santibanez Cardona and United States v. Rehinner Antonio Montoya Garcia, Nos. 24‑3232(L), 24‑3293(Con). The case arises from two Colombian defendants’ guilty pleas to conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 960, 963, and the substantial sentences they received in the Southern District of New York: fifteen and twenty years’ imprisonment, respectively.

The appeal did not challenge the convictions or the correctness of the Sentencing Guidelines calculations. Instead, the core issue was whether the sentencing judge’s repeated references to “Colombia,” “Colombians,” and “the Colombian problem” created the impermissible appearance that the defendants’ national origin played an adverse role in determining their sentences. The Second Circuit, applying its long-standing “appearance of justice” doctrine in the sentencing context, vacated both sentences and remanded for resentencing before a different district judge.

Although issued as a summary order—and therefore non-precedential under the Second Circuit’s Local Rule 32.1.1—the decision is a significant reaffirmation and application of an important line of cases (notably Leung, Kaba, and Carreto) governing how courts must avoid even the appearance that race or national origin has influenced a sentence. It provides practical guidance to district judges, prosecutors, and defense counsel on the limits of using nationality-linked rhetoric in the name of “general deterrence.”

II. Summary of the Second Circuit’s Order

The defendants, both Colombians, pleaded guilty to conspiracy to import cocaine. The district court (Judge Valerie E. Caproni) imposed substantial prison sentences, emphasizing the need for “general deterrence” and repeatedly framing that deterrence in terms of sending a message “to Colombia,” “to Colombians,” and addressing “the Colombian problem.”

On appeal, the defendants argued that these remarks created the appearance that their sentences were influenced by their national origin, in violation of the rule that “a defendant’s race or nationality may play no adverse role in the administration of justice, including at sentencing.” The government defended the sentences but also, at the sentencing hearings, twice attempted to elicit clarifications from the district court that it was not sentencing based on nationality.

The Second Circuit held:

Legal principle reaffirmed: Even the appearance that a sentence reflects a defendant’s race or nationality “will ordinarily require” vacatur and remand for resentencing, because “justice must satisfy the appearance of justice.”
Application to Santibanez Cardona: The district court’s statements about sending a message “to Colombia” and to “narco traffickers” there created a sufficient risk that a reasonable observer might infer that national origin played a role, requiring vacatur.
Application to Montoya Garcia: The judge’s comments that “Colombians need to understand they need to quit exporting cocaine” and “I don’t know how else we deal with the Colombian problem” similarly created an impermissible appearance of nationality-based sentencing. The government’s attempts to obtain curative clarifications did not erase that appearance.
Remedy: The court vacated both sentences and remanded the cases to the Southern District of New York for reassignment and resentencing before a new district judge, in accordance with its “prophylactic rule” in this area.

The panel explicitly noted that it saw no evidence of actual bias and was confident the sentencing judge could fairly resentence. Nonetheless, existing Second Circuit case law required reassignment to protect the “appearance of justice.”

III. Legal Background and Precedents

A. Constitutional and Doctrinal Context

Although the order is framed in terms of circuit precedent, it sits atop fundamental constitutional principles:

Equal protection and due process: Government selection of punishment based even in part on race or national origin is incompatible with equal protection values and with the due process right to a fair and impartial tribunal.
Impartial judiciary and public confidence: The Supreme Court has emphasized that courts must not only be fair but also appear to be fair. Public confidence in the judiciary requires that reasonable observers not doubt the impartiality of sentencing decisions.
18 U.S.C. § 3553(a): Federal sentencing must be based on statutory factors—such as the nature of the offense, the history and characteristics of the defendant, the need for just punishment, deterrence, protection of the public, and rehabilitation—none of which permit reliance on race or national origin as an aggravating element.

Against this background, the Second Circuit has built a distinctive body of case law governing the use of ethnic or national-origin references at sentencing.

B. Key Precedents Cited in the Summary Order

1. United States v. Leung, 40 F.3d 577 (2d Cir. 1994)

Leung is the foundational case. The district judge there stated at sentencing:

“The purpose of my sentence here is to punish the defendant and to generally deter others, particularly others in the Asiatic community because this case received a certain amount of publicity in the Asiatic community, and I want the word to go out from this courtroom that we don't permit dealing in heroin and ... if people want to come to the United States they had better abide by our laws.”

The Second Circuit vacated the sentence and remanded for resentencing before a different judge, holding that:

Even if the judge was not actually biased, the comments created an appearance that the defendant’s ethnicity and immigrant status contributed to the severity of the sentence.
The court adopted a “prophylactic rule”: the appearance that race or nationality influenced sentencing ordinarily requires vacatur and reassignment.

Leung is directly invoked in the summary order, both for its principal rule (“a defendant’s race or nationality may play no adverse role in the administration of justice”) and for its remedial approach (reassignment on remand).

2. United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994)

Jacobson is cited for a key nuance:

“Reference to national origin and naturalized status is permissible, so long as it does not become the basis for determining the sentence.”

This distinction governs much of the analysis in Santibanez Cardona / Montoya Garcia. Not every mention of nationality is forbidden—courts may accurately describe a defendant’s background. The problem arises when nationality appears to be tied to an aggravating sentencing purpose (e.g., “sending a message” to that national group).

3. United States v. Kaba, 480 F.3d 152 (2d Cir. 2007)

Kaba crystallizes the “appearance of justice” principle that drives this summary order. The Second Circuit held:

“Proof of actual bias is not necessary” to vacate a sentence.
“Even the appearance that the sentence reflects a defendant's race or nationality will ordinarily require a remand for resentencing.”
Sentences must not be influenced by the publicity a sentence might receive in the defendant's ethnic community or native country or by an express desire to deter “others sharing that national origin.”

The order here quotes Kaba directly and applies the same logic: statements about sending a deterrent “message” to Colombia and to “Colombians” equate to an effort to punish the defendants partly to influence a broader national-origin group.

4. United States v. Carreto, 583 F.3d 152 (2d Cir. 2009)

Carreto is cited for two key propositions:

Standard of review: Whether a district court improperly considered national origin is a question of law reviewed de novo. The appellate court does not defer to the district judge’s characterization of their own intent.
Contextual analysis: In assessing if references to nationality are improper, the court may consider whether the judge was merely responding to arguments raised by the defense. But responsive comments still cannot cross the line into apparent reliance on nationality as an aggravating factor.

The government relied heavily on this “responsive context” argument in defending Montoya Garcia’s sentence, but the panel rejected the idea that responsiveness alone cured the appearance problem.

5. Recent Summary Orders: Vasquez-Drew and Arslanouk

The court also cites two recent non-precedential summary orders:

United States v. Vasquez-Drew, No. 20‑3195, 2023 WL 2359966 (2d Cir. Mar. 3, 2023): The sentencing judge stated: “It is important ... that the people in Bolivia understand the kind of sentences that are potentially imposed here from engagement in activity to send cocaine into America.” The Second Circuit vacated the sentence based on the appearance that nationality was linked to deterrence.
United States v. Arslanouk, 853 F. App’x 714 (2d Cir. 2021): The judge spoke of sending a message that “Russian organized crime that seeks to come to the shores of the United States will be dealt with, with the power of our criminal justice system.” Again, the appellate court held such country-specific deterrence rhetoric problematic.

These cases evidence a consistent pattern: where a court explicitly frames deterrence as sending a message to the defendant’s country or ethnic group, the Second Circuit is likely to vacate the sentence, even absent proof of actual bias.

C. The Second Circuit’s “Prophylactic Rule”

From Leung through Kaba to the present case, the Second Circuit has adopted what it describes as a “prophylactic rule”:

If a reasonable observer could infer—even incorrectly—that a defendant’s race or nationality affected the sentence, the court will:
- vacate the sentence; and
- remand for resentencing before a different judge (reassignment).
This is done not because the original judge is incapable of fairness, but because “the appearance of justice is better satisfied” by reassignment.

Santibanez Cardona / Montoya Garcia is a textbook application of this prophylactic approach.

IV. The Court’s Legal Reasoning in Santibanez Cardona / Montoya Garcia

A. Threshold Principles

The panel summarized the controlling law:

“A defendant's race or nationality may play no adverse role in the administration of justice, including at sentencing.” (Leung).
Courts may refer to national origin or immigration status, but those “must not become the basis for determining the sentence.” (Jacobson).
No proof of actual bias is required; “even the appearance” that the sentence reflects race or nationality normally mandates vacatur (Kaba).
The question whether the court improperly considered nationality is reviewed de novo (Carreto).

Against this legal standard, the panel examined the specific sentencing remarks in each defendant’s case.

B. The Santibanez Cardona Sentencing

In sentencing Juan Felipe Santibanez Cardona, the district judge discussed the need for “general deterrence” and “specific deterrence,” both standard sentencing factors under 18 U.S.C. § 3553(a)(2). However, the problematic portion was how the judge articulated general deterrence:

“General deterrence, how do we deter people generally from committing crimes — in your case that would mean how do we send the message to Colombia and narco traffickers to stop, to quit importing narcotics into the United States .... In terms of general deterrence, I think it is incredibly important for the word to get back to Colombia: You engage in this sort of drug trafficking and you get caught and you get brought back to the United States, you're going to spend a very long time in prison. We take this crime very seriously.”

The Second Circuit concluded that these remarks:

Created “a sufficient risk that a reasonable observer ... might infer, however incorrectly,” that the defendant’s national origin played a role in the sentencing decision.
Linked general deterrence (a legitimate sentencing factor) specifically to sending a message “to Colombia,” rather than to drug traffickers generally, thus suggesting that the defendant’s Colombian identity was being used as a vehicle to communicate with other Colombians.

The court expressly stated its confidence that the district judge harbored “no actual bias” against the defendant. Nonetheless, in light of Leung, Kaba, and Vasquez-Drew, these comments inevitably triggered the prophylactic rule requiring vacatur and resentencing.

C. The Montoya Garcia Sentencing

The second defendant’s sentencing presented a slightly different context. Defense counsel had argued that in Colombia a person who can access eight kilograms of cocaine is not necessarily a “major trafficker.” The government argued on appeal that the district judge’s remarks about Colombia and Colombians were merely a response to this line of argument, which Carreto suggests can be a relevant contextual factor.

The panel, however, rejected the notion that context cured the problem. It focused on several key statements:

After defense counsel conceded that “general deterrence” had been a motivating factor in Santibanez’s sentence, the judge stated:
“It's a motivating factor in the sense that Colombians need to understand they need to quit exporting cocaine into the United States, and if they get caught, they will do a lot of time. I mean, I don't know how else we deal with the Colombian problem.”
The government then requested clarification that the court was “not in any way sentencing the defendant based on his nationality.” The judge replied only: “Oh, no.”
During the explanation of sentence, the court added:
“I believe it is important for the message to get back to the drug traffickers in South America, and Colombia as well, to stop importing cocaine into the United States. The United States takes this seriously, and it's got to stop.”
After the government again asked for clarification that “the defendant's nationality had no bearing” on the sentence, the judge said the “sentence would have been the same if it was entirely based on the activities with the informant as part of the activities in the conspiracy.”

The Second Circuit held that:

The judge’s explicit focus on “Colombians” needing to “understand” and references to “the Colombian problem” elevated nationality from a background fact to an apparent sentencing rationale.
The government’s efforts to solicit curative statements did not suffice. The judge’s brief and somewhat formulaic disclaimers (“Oh, no” / “sentence would have been the same”) did not dispel the risk that a reasonable observer would infer a nationality-based motive, especially when contrasted with the stronger, repeated country-specific deterrence statements.
Under Kaba and Leung, such an appearance of nationality-based sentencing required vacatur and remand, irrespective of any subjective assurance from the sentencing judge or post-hoc rationalization.

D. The Role of General Deterrence and Its Limits

A central theme in the order is the proper, and improper, use of general deterrence. Under 18 U.S.C. § 3553(a)(2)(B), sentencing courts must consider:

“the need for the sentence imposed ... to afford adequate deterrence to criminal conduct.”

The Second Circuit accepts that:

General deterrence is a legitimate sentencing goal. Courts are entitled, and indeed obligated, to consider how a sentence may deter others from committing similar crimes.

But it reaffirms important limits:

General deterrence cannot lawfully be pursued by targeting specific racial or national groups as the audience for the deterrent message.
Sentences cannot be imposed, or increased, in order to:
- send a message specifically to “the Asiatic community” (Leung),
- to “people in Bolivia” (Vasquez-Drew),
- to “Russian organized crime” as a national phenomenon (Arslanouk), or
- to “Colombians” or the “Colombian problem” (this case).
The legitimate formulation is to speak in terms of:
- deterring drug traffickers generally (regardless of nationality), or
- deterring participants in a particular kind of criminal scheme or organization.

By remanding here, the Second Circuit reinforces that the line is crossed when nationality becomes a salient targeting criterion for the deterrent message.

E. Remedy: Vacatur, Remand, and Reassignment

The court concluded that both sentences must be vacated and the cases remanded for resentencing before a new district judge. It emphasized:

There was “no indication of actual bias” by the sentencing judge.
The panel was “confident—as we are here—that the original sentencing judge could fairly sentence on remand.”
Nonetheless, under its prophylactic rule, “the appearance of justice is better satisfied by” reassignment.

This mirrors the practice in Leung and Kaba, where reassignment is not a disciplinary measure but a structural safeguard to maintain public confidence in judicial impartiality.

V. Clarifying Complex Legal Concepts

A. “Summary Order” and Non-Precedential Effect

The opinion begins with a standard Second Circuit notice:

“Rulings by summary order do not have precedential effect.”
However, citation to a post‑2007 summary order is permitted under Federal Rule of Appellate Procedure 32.1 and Local Rule 32.1.1.

In practice:

Lawyers may cite this order as persuasive authority, especially given its tight alignment with published cases like Leung and Kaba.
It does not bind future panels the way a published precedential opinion does, but it strongly signals how the Second Circuit will likely continue to apply its established doctrine.

B. “Appearance of Justice” vs. Actual Bias

The “appearance of justice” principle means:

Courts must avoid not only actual injustice, but also circumstances where an informed, reasonable observer could reasonably question whether justice was done.
In the sentencing context, if comments might reasonably be interpreted as tying punishment to race or national origin, the sentence is tainted even if the judge believed they were simply describing a legitimate goal like deterrence.

This is why the Second Circuit vacated here despite finding “no indication of actual bias.” The prophylactic rule is intended to protect both defendants and the judiciary’s institutional legitimacy.

C. De Novo Review

When the court says it reviews whether the district court improperly considered nationality de novo, it means:

The appellate court owes no deference to the district judge’s view of whether their own comments were appropriate.
It independently reads the transcript, applies the law, and makes its own judgment about whether a reasonable observer could see the sentence as nationality‑influenced.

D. Vacatur, Remand, and Reassignment

Vacate: The original sentence is nullified; it is as if no sentence had been imposed.
Remand: The case is returned to the district court for further proceedings (here, resentencing).
Reassignment: The resentencing is assigned to a different judge in the same district, to eliminate any lingering appearance problems and avoid placing the original judge in a difficult position of revisiting their own remarks.

E. General vs. Specific Deterrence

General deterrence: Using the sentence to dissuade others (unknown, potential offenders) from committing similar crimes.
Specific deterrence: Using the sentence to dissuade this particular defendant from reoffending.

Both are legitimate sentencing purposes. The error in this case lies not in invoking deterrence, but in tying general deterrence to specific nationalities or countries.

F. Nationality, National Origin, and Citizenship

The order, and the earlier cases, use terms like “race,” “national origin,” and “nationality.” The core idea is:

Courts cannot treat a defendant more harshly because of:
- their race or ethnicity;
- their country of origin (e.g., “Colombian”); or
- their citizenship/immigration status, when used as a proxy for race/national origin in an aggravating way.
Neutral, factual references (e.g., to explain a defendant’s history, family location, wiretap logistics, or extradition processes) are permissible; what is prohibited is using those facts to justify a harsher sentence.

VI. Practical and Doctrinal Impact

A. For District Judges: Sentencing Rhetoric and Practice

Although non-precedential, the order underscores a clear message to sentencing judges within the Second Circuit:

Avoid country‑ or ethnicity‑specific deterrence statements. Phrasing like “people in [country X] need to understand” or “how else do we deal with the [nationality Y] problem?” is almost certain to trigger appeals and potential vacatur.
Focus on offender and offense characteristics, not group identity. It is safer and more doctrinally sound to:
- describe the harm of the offense,
- emphasize how sentences deter all drug traffickers, and
- address the particular defendant’s role and conduct.
Curative statements must be robust, not perfunctory. If a judge recognizes a possible misstep during the hearing, a meaningful clarification—reframing the rationale in neutral terms and explicitly disavowing any reliance on nationality—may help. Here, the brief “Oh, no” and a generic “sentence would have been the same” were deemed insufficient.

B. For Prosecutors

The government in this case twice sought to have the district court clarify that it was not sentencing based on nationality. The Second Circuit acknowledged these attempts but found them ineffective.

Going forward:

Prosecutors should be proactive at sentencing in discouraging or avoiding group‑targeted deterrence language and, if such language appears, in encouraging a clear and substantive correction on the record.
Written submissions should avoid arguing that a harsh sentence is needed so that “people in [defendant’s country]” get the message; arguments should focus on the crimes’ transnational nature, not on the nationality of offenders.

C. For Defense Counsel

Defense counsel gain several practical tools from this order and its cited precedents:

If a sentencing judge appears to link deterrence to the defendant’s nationality or ethnic group, counsel should:
- object on the record,
- cite Leung, Kaba, Carreto, and the recent summary orders (Vasquez‑Drew, Arslanouk, and this one), and
- explicitly request either immediate clarification or, if necessary, resentencing.
On appeal, counsel can rely on this growing line of cases to argue that nationality‑linked sentencing rhetoric alone—without proof of actual bias or of a precise effect on sentence length—justifies vacatur and reassignment.

D. Continuity Rather Than Change in the Law

Doctrinally, the order does not create new law; it is squarely an application of existing Second Circuit jurisprudence:

It confirms that Leung and Kaba retain full force.
It reinforces how closely the court scrutinizes deterrence-based references to country or ethnicity at sentencing.
It adds Colombia/South America‑focused remarks to the category of statements that have already drawn appellate correction when similar comments were aimed at Asian, Bolivian, or Russian communities.

Thus, while technically non‑precedential, the order provides a concrete and recent example of how the Second Circuit will enforce its long‑standing rule against the appearance of national‑origin‑based sentencing.

VII. Conclusion

United States v. Santibanez Cardona & Montoya Garcia is a significant, if non‑precedential, reaffirmation of the Second Circuit’s unwavering stance that race and national origin may not play—even apparently—any adverse role in sentencing. By vacating two substantial sentences and ordering resentencing before a different judge, the court:

Reapplies its prophylactic rule that the appearance of justice is itself a substantive requirement.
Clarifies that general deterrence cannot be operationalized by sending punitive “messages” to specific nationalities or countries, such as “Colombians” or “people in Colombia.”
Demonstrates that brief, formulaic disclaimers about not relying on nationality are insufficient when juxtaposed with strong, repeated deterrence statements directed at a defendant’s country of origin.

The order situates itself firmly within the line of Leung, Jacobson, Kaba, Carreto, Vasquez‑Drew, and Arslanouk, providing yet another concrete example of unacceptable sentencing rhetoric. While it does not alter governing law, it offers powerful guidance to judges, prosecutors, and defense counsel alike: to preserve public confidence in the fairness and neutrality of the criminal justice system, sentencing must be free not only from actual nationality‑based bias, but also from any language that could reasonably be perceived as punishing defendants in order to send a message to others who share their national origin.

Reaffirming the Prophylactic Rule Against National-Origin-Based Sentencing: Commentary on United States v. Santibanez Cardona & Montoya Garcia