09-2909-cr
U .S. v. D eJesus
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY 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. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 24 th day of September, two thousand ten.
PRESENT: JON O. NEWMAN,
REENA RAGGI,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-2909-cr
FELIX DeJESUS,
Defendant-Appellant.
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APPEARING FOR APPELLANT: DAN E. LaBELLE, Halloran & Sage LLP,
Westport, Connecticut.
APPEARING FOR APPELLEE: JAMES R. SMART, Assistant United States
Attorney (Michael J. Gustafson, Assistant United
States Attorney, on the brief), for David B. Fein,
United States Attorney for the District of
Connecticut, New Haven, Connecticut.
*
District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
Appeal from the United States District Court for the District of Connecticut (Stefan
R. Underhill, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on July 6, 2009, is AFFIRMED.
Defendant Felix DeJesus, who was convicted following a jury trial of one count of
conspiracy to possess with intent to distribute 1,000 grams or more of heroin and one count
of conspiracy to possess with intent to distribute fifty grams or more of crack cocaine, see
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, challenges the substantive reasonableness of his
300-month sentence, imposed after remand from this court pursuant to United States v.
Regalado, 518 F.3d 143 (2d Cir. 2008). See United States v. Rosario, 280 F. App’x 78, 80
(2d Cir. 2008) (instructing district court to consider whether it would have imposed non-
Guidelines sentence in light of discretion to deviate from crack cocaine Guideline and
inviting consideration of disparity in sentences imposed on DeJesus and his brother). We
review the reasonableness of a sentence for abuse of discretion and will “set aside a district
court’s substantive determination only in exceptional cases where the trial court’s decision
cannot be located within the range of permissible decisions.” United States v. Cavera, 550
F.3d 180, 189 (2d Cir. 2008) (en banc) (emphasis in original) (internal quotation marks
omitted); United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007). In undertaking this
review, we assume the parties’ familiarity with the facts and record of prior proceedings,
which we reference only as necessary to explain our decision to affirm.
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DeJesus submits that his sentence is substantively unreasonable because it is greater
than necessary to achieve the goals of sentencing and fails adequately to account for his
disadvantaged youth, the brevity of his previous terms of incarceration, and his steps toward
rehabilitation. We are not persuaded.
The challenged 300-month sentence reflects a five-year reduction from the thirty-year
prison term originally imposed. That reduction was made in consideration of DeJesus’s
claim that the original thirty-year term sentenced him to twenty months more imprisonment
than his brother, whose criminal history category and offense level were higher and who also
played a significant a role in the charged conspiracy. See United States v. Rosario, 280 F.
App’x at 80.1 The district court plainly considered and credited DeJesus’s rehabilitation
efforts when, at the original sentencing, it cited this ground to support a downward departure
from offense level 43 to 42. As for the remaining mitigating factors, the district court
considered them outweighed by the defendant’s long criminal record, history of violence, and
supervisory role in what the district court described as “one of the worst drug conspiracies”
to have operated in the Bridgeport area. Sent’g Tr. at 72; United States v. DeJesus, No. 00
Cr. 227 (D. Conn. Apr. 30, 2007) (Ruling and Order Regarding Crosby Remand, at 2). This
assessment was informed by insight gained from three trials pertaining to the charged
1
As noted, the remand order also instructed the district court to consider, pursuant to
United States v. Regalado, whether it would have imposed the same sentence in light of its
discretion to deviate from the crack cocaine Guideline. The district court declined to adjust
the sentence on this basis in light of the substantial amounts of heroin involved in the crime
of conviction. DeJesus does not challenge this aspect of the district court’s sentencing
determination.
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conspiracy and the imposition of dozens of sentences on members of the criminal scheme.
In these circumstances, we conclude that the district court acted well within its discretion in
imposing the challenged sentence, see Gall v. United States, 552 U.S. 38, 51-52 (2007)
(discussing institutional advantages of district court); accord United States v. Jones, 531 F.3d
163, 170-71 (2d Cir. 2008), and we reject the claim of substantive unreasonableness as
without merit, see United States v. Cavera, 550 F.3d at 189.
We have considered DeJesus’s other arguments on appeal and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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