United States v. Cuevas , 387 F. App'x 84 ( 2010 )

09-3003-cr
United States v. Cuevas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 22 nd day of July, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 PETER W. HALL,
8 Circuit Judges,
9 RICHARD W. GOLDBERG,
10 Judge. *
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 09-3003-cr
18
19 ALEJANDRO BORDE and JESENIA HERNANDEZ,
20
21 Defendants,
22
23 JUAN CUEVAS,
24
25 Defendant-Appellant.
26
27
28
*
The Honorable Richard W. Goldberg, United States Court of
International Trade, sitting by designation.
1 FOR APPELLANT: DONNA R. NEWMAN, New York, NY.
2
3 FOR APPELLEE: JOCELYN E. STRAUBER, Assistant
4 United States Attorney (Michael
5 S. Bosworth, Assistant United
6 States Attorney, on the brief),
7 for Preet Bharara, United States
8 Attorney for the Southern
9 District of New York, New York,
10 NY.
11
12 Appeal from the United States District Court for the
13 Southern District of New York (Batts, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment of the district court is
17 AFFIRMED.
18 Appellant Juan Cuevas appeals from the district court’s
19 June 29, 2009 judgment of conviction entered following his
20 March 30, 2008 guilty plea to one count of conspiring to
21 distribute and possess with intent to distribute five or
22 more kilograms of cocaine, in violation of 21 U.S.C. § 846.
23 The district court sentenced appellant principally to 151
24 months’ imprisonment. We assume the parties’ familiarity
25 with the underlying facts, the procedural history, and the
26 issues presented for review.
27 In this appeal, appellant argues that his sentence was
28 marred by procedural error because the district court: (1)
29 did not describe on the record the factual findings
2
1 underlying its calculation of the applicable sentencing
2 range from the U.S. Sentencing Guidelines (the
3 “Guidelines”); (2) relied on hearsay and other evidence that
4 was insufficient to sustain the findings upon which the
5 Guidelines calculation was based; and (3) failed to consider
6 all of the sentencing factors set forth at 18 U.S.C. §
7 3553(a). We consider these procedural arguments under a
8 deferential abuse-of-discretion standard; the touchstone of
9 our review is reasonableness. See United States v. Cavera,
10 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc).
11 Appellant first argues that the district court
12 committed procedural error by failing to make fact findings
13 on the record relating to the three-level role enhancement
14 that it imposed, see U.S.S.G. § 3B1.1(b), as well as the
15 applicable drug quantity under the Guidelines. Because
16 appellant did not raise these objections at the sentencing,
17 we review his contentions for plain error. See United
18 States v. Espinoza, 514 F.3d 209, 211-12 (2d Cir. 2008).
19 The district court stated at the sentencing that it
20 “accept[ed] and adopt[ed] the factual recitations set forth
21 in the presentence report, including the quantity of drugs
22 in issue.” With respect to appellant’s role, the district
3
1 court rejected the Probation Department’s four-level
2 recommendation and instead imposed a three-level
3 enhancement. The court explained that it “agree[d] with the
4 government that Mr. Cuevas was a supervisor of Ms.
5 Hernandez,” but that “a three-level increase as opposed to a
6 four-level increase would more closely approximate
7 [appellant’s] role in this matter.” The district court
8 committed no error — plain or otherwise — by adopting and
9 relying upon the presentence report (“PSR”) as the basis for
10 these factual findings. See id. at 212.
11 Appellant next argues that the factual findings in the
12 PSR were insufficient to support the district court’s
13 Guidelines calculation by a preponderance of the evidence.
14 “The sentencing court’s discretion is largely unlimited
15 either as to the kind of information it may consider, or the
16 source from which it may come,” and the court “is free to
17 consider hearsay evidence . . . in determining [a]
18 sentence.” United States v. Gomez, 580 F.3d 94, 105 (2d
19 Cir. 2009) (internal quotation marks omitted). Having
20 reviewed the PSR, as well as the other documents that were
21 before the district court at appellant’s sentencing, we find
22 that these materials were sufficient to sustain the district
4
1 court’s conclusions regarding the applicable role
2 enhancement and drug quantity.
3 Consistent with that conclusion, we hold that the
4 district court did not err by failing to conduct a hearing
5 to determine the precise drug quantity that was to be
6 considered under the Guidelines. Although appellant’s
7 counsel objected to the Probation Department’s drug-quantity
8 finding in his July 23, 2008 sentencing submission, he did
9 not raise this issue at the subsequent sentencing proceeding
10 on June 15, 2009. His failure to do so was consistent with
11 the fact that, at an intervening safety valve proffer with
12 the government, appellant admitted that he had sold between
13 30 and 40 kilograms of cocaine. The government provided
14 this information to the district court in its November 12,
15 2008 sentencing submission, and appellant did not contest
16 the veracity of that representation in the district court or
17 this appeal. Therefore, the district court was entitled to
18 rely on defendant’s statements during the safety valve
19 proffer as confirmation of the finding in the PSR that the
20 quantity of cocaine involved was somewhere between 15 and 50
21 kilograms.
22 Finally, appellant argues that the district court
5
1 failed to give adequate consideration to the sentencing
2 factors listed in 18 U.S.C. § 3553(a). This contention runs
3 headlong into United States v. Fernandez, 443 F.3d 19 (2d
4 Cir. 2006), in which we held that we will “presume, in the
5 absence of record evidence suggesting otherwise, that a
6 sentencing judge has faithfully discharged her duty to
7 consider the statutory factors.” Id. at 29. Simply put,
8 there is no indication in the record that the district
9 court’s consideration of the § 3553(a) factors was
10 insufficient.
11 We have considered each of appellant’s arguments and
12 find them to be without merit. Accordingly, the judgment of
13 the district court is hereby AFFIRMED.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
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