United States v. Figueroa ( 2012 )

10-3248
United States v. Figueroa
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 13th day of March, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-3248
18
19 RAKEEM FIGUEROA, AKA Rawly,
20
21 Defendant-Appellant,
22
23 RASHEEN JONES, AKA Easy, JAMEL JORDAN,
24 AKA Jigga,
25
26 Defendants.
27
1
1 - - - - - - - - - - - - - - - - - - - -X
2
3 FOR APPELLANT: Katherine Alfieri,
4 New York, NY
5
6
7 FOR APPELLEE: Amy Busa, Celia A. Cohen,
8 Assistant United States
9 Attorneys, for Loretta E. Lynch,
10 United States Attorney,
11 Eastern District of New York,
12 Brooklyn, NY
13
14 Appeal from a judgment of the United States District
15 Court for the Eastern District of New York (Ross, J.).
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the district court’s judgment is AFFIRMED.
19
20 Rakeem Figueroa appeals from a 48-month sentence of
21 imprisonment entered in the United States District Court for
22 the Eastern District of New York following his conviction of
23 multiple counts of distribution of cocaine base, in
24 violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). We
25 assume the parties’ familiarity with the underlying facts,
26 the procedural history, and the issues presented for review.
27
28 [1] Figueroa argues that the sentence was procedurally
29 unreasonable because the district court miscalculated the
30 amount of drugs attributable to him. The quantity of drugs
31 attributable to a defendant is a question of fact which we
32 review for clear error. See United States v. Richards, 302
33 F.3d 58, 70 (2d Cir. 2002). “[I]f the evidence--direct or
34 circumstantial--supports a district court’s preponderance
35 determination as to drug quantity, we must sustain that
36 finding.” United States v. Jones, 531 F.3d 163, 175 (2d
37 Cir. 2008). “[I]n reviewing a legal challenge to a quantity
38 finding we are mindful of the Guidelines’ express
39 instruction that where there has been no seizure of
40 narcotics, or where the quantity seized does not reflect the
41 true scale of the offense, a sentencing judge should
42 approximate the relevant drug quantity.” Id. (internal
43 quotation marks omitted). In making that approximation,
44 “the court has broad discretion to consider all relevant
45 information.” United States v. Blount, 291 F.3d 201, 215
2
1 (2d Cir. 2002).
2
3 The district court’s finding that Figueroa was
4 responsible for more than 50 grams of crack cocaine was not
5 clearly erroneous. Through undercover drug buys, NYPD
6 officers purchased from (or observed in the possession of)
7 Figueroa and his co-conspirators only marginally less than
8 50 grams of crack. But in addition, Figueroa admitted at
9 trial that he sold to customers other than the undercover
10 officers, that he frequently purchased approximately 3.5
11 grams of crack at a time, and that he aimed to sell a
12 significant amount of that per day. This was ample evidence
13 to support the district court’s finding.
14
15 [2] Figueroa also challenges his sentence as substantively
16 unreasonable. We will “set aside a district court’s
17 substantive determination only in exceptional cases where
18 the trial court’s decision cannot be located within the
19 range of permissible decisions.” United States v. Cavera,
20 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (internal
21 quotation marks omitted). Figueroa provides no reason why
22 his substantially below-Guidelines sentence was excessive.
23 See United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.
24 2006) (“[I]n the overwhelming majority of cases, a
25 Guidelines sentence will fall comfortably within the broad
26 range of sentences that would be reasonable in the
27 particular circumstances.”).
28
29 We have considered Figueroa’s remaining arguments and
30 find them to be without merit. For the foregoing reasons,
31 the judgment of the district court is hereby AFFIRMED.
32
33
34
35 FOR THE COURT:
36 CATHERINE O’HAGAN WOLFE, CLERK
37
38
39
40
41
3