United States v. Rojas

08-2380-cr United States of America v. Rojas 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 20 th day of January, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 ROBERT D. SACK, 9 PETER W. HALL 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 United States of America, 14 Appellee, 15 16 -v.- 08-2380-cr 17 18 JUNIOR ROJAS, also known as Ron John, 19 also known as Ron Joe, also known as 20 Pelon 21 Appellant. 22 - - - - - - - - - - - - - - - - - - - -X 23 24 APPEARING FOR APPELLANT: BETH M. FARBER, Esq., New York, 25 NY. 26 27 APPEARING FOR APPELLEES: SARAH Y. LAI, Katherine Polk 28 Failla, for Preet Bharara, 29 United States Attorney for the 30 Southern District of New York, 31 New York, NY. 1 1 Appeal from a judgment of the United States District 2 Court for the Southern District of New York (Buchwald, 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 Junior Rojas pled guilty to one count of conspiring to 9 deal drugs (cocaine) and one count of money laundering. 21 10 U.S.C. § 846; 18 U.S.C. § 1956(h). We assume the parties’ 11 familiarity with the underlying facts, the procedural 12 history, and the issues presented for review. 13 14 The guideline range for Rojas’s sentence was 168 to 210 15 months; Rojas asserts no procedural error. He argues only 16 that his sentence of 108 months’ incarceration (plus five 17 years of supervised release) is substantively unreasonable. 18 19 Substantive reasonableness is reviewed under “a 20 deferential abuse-of-discretion standard.” United States v. 21 Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc). 22 23 The claim of substantive error is that the court failed 24 to consider whether the powder cocaine sentence guidelines 25 are improperly high and make a ruling on that point. As 26 Rojas did not argue this below, he concedes that this review 27 is conducted under a plain error standard. 28 29 Even if his claim were properly preserved, there is no 30 basis in law for requiring district courts to explicitly 31 consider whether to reject the applicable guideline range as 32 a policy matter before sentencing a defendant. The Supreme 33 Court has allowed district courts to sentence below a 34 guideline range due to a policy disagreement; but it has 35 never required them to first affirmatively state whether or 36 not they disagree with sentencing guidelines as a policy 37 matter. See Kimbrough v. United States, 552 U.S. 85, 108 38 (2007). Further, simply because a district court does not 39 mention a relevant consideration does not mean it failed to 40 give it consideration. See United States v. Fernandez, 443 41 F.3d 19, 30 (2d Cir. 2006). 42 43 Finding no merit in the defendant’s arguments, we 44 hereby AFFIRM the judgment of the district court. 45 46 FOR THE COURT: 47 CATHERINE O’HAGAN WOLFE, CLERK 48 49 By:___________________________ 2