United States v. Rodriguez

13-3798-cr United States v. Rodriguez UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 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. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 28th day of September, two thousand fifteen. 5 6 PRESENT: DENNIS JACOBS, 7 RICHARD C. WESLEY, 8 SUSAN L. CARNEY, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 UNITED STATES OF AMERICA, 13 Appellee, 14 15 -v.- 13-3798 16 17 OMAR RODRIGUEZ, 18 Defendant-Appellant. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLANT: PETER J. TOMAO, Garden City, New 22 York. 23 24 FOR APPELLEE: EUGENIA A.P. COWLES for Eric S. 25 Miller, United States Attorney 26 for the District of Vermont, 27 Burlington, Vermont. 28 1 1 Appeal from a judgment of the United States District 2 Court for the District of Vermont (Murtha, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the judgment of the district court be 6 AFFIRMED. 7 8 Omar Rodriguez appeals from the judgment of the United 9 States District Court for the District of Vermont (Murtha, 10 J.), sentencing him after a guilty plea to 262 months’ 11 imprisonment and three years’ supervised release. We assume 12 the parties’ familiarity with the underlying facts, the 13 procedural history, and the issues presented for review. 14 15 On the original appeal of the sentence, we remanded 16 pursuant to United States v. Jacobson, 15 F.3d 19, 21-22 (2d 17 Cir. 1994), for the district court to make findings as to 18 whether Rodriguez had the intent necessary to commit the 19 offense of attempted murder, thereby supporting the 20 applicable sentencing enhancement. See United States v. 21 Rodriguez, 595 F. App’x 83, 84 (2d Cir. 2015). The district 22 court found that Rodriguez possessed the requisite intent by 23 a preponderance of the evidence, restoring our jurisdiction 24 over Rodriguez’s appeal. 25 26 1. Rodriguez argues that his 262-month sentence is 27 procedurally unreasonable because the district court, in 28 finding that Rodriguez possessed a specific intent to kill, 29 relied in part on the testimony of Rodriguez’s friend, 30 William Dillon. “Reasonableness review is akin to that for 31 abuse of discretion . . . .” United States v. Tapia- 32 Vitinio, 463 F. App’x 11, 12 (2d Cir. 2011). Rodriguez had 33 ample opportunity to challenge Dillon’s statement in the 34 course of sentencing, which was in any event just one of 35 four specific findings adduced to support the attempted 36 murder sentencing enhancement. See United States v. 37 Rodriguez, No. 1:12-cr-73-1-jgm, 2015 WL 3454725, at *1-*2 38 (D. Vt. May 29, 2015). 39 40 2. Rodriguez contends that the district court applied 41 an incorrect standard in finding that he had a specific 42 intent to kill. The district court cited the correct 43 standard–-namely that by a preponderance of the evidence, 44 Rodriguez “actually attempted or intended to kill his 45 victim”--and then applied this standard in making its 46 findings. United States v. Stroman, 420 F. App’x 100, 105 47 (2d Cir. 2011). 2 1 3. Rodriguez argues that, by virtue of Alleyne v. 2 United States, 133 S.Ct. 2151, 2163 (2013), the district 3 court was precluded from considering any facts not admitted 4 during the plea hearing. Rodriguez misreads Alleyne, which 5 does not apply to the advisory Sentencing Guidelines. See 6 United States v. Vaughn, 430 F.3d 518, 528 (2d Cir. 2005) 7 (“[W]hen a judge sentences a defendant within the statutory 8 range authorized by the jury verdict and uses advisory 9 Guidelines to calculate that sentence, there is no Sixth 10 Amendment violation.”). 11 12 4. Rodriguez contends that his case should be remanded 13 to a different judge for resentencing. Because there is no 14 ground for disturbing the district court’s judgment, further 15 remand is unnecessary. In any event, Rodriguez has not 16 shown this to be the rare case “in which the judge’s 17 fairness or the appearance of the judge’s fairness is 18 seriously in doubt.” United States v. Bradley, 812 F.2d 19 774, 782 n.9 (2d Cir. 1987). 20 21 For the foregoing reasons, and finding no merit in 22 Rodriguez’s other arguments, we hereby AFFIRM the judgment 23 of the district court. 24 25 26 FOR THE COURT: 27 CATHERINE O’HAGAN WOLFE, CLERK 28 3