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