United States v. Rivera

17-1626-cr
United States v. Rivera
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 23rd day of March, two thousand eighteen.
5
6 PRESENT: DENNIS JACOBS,
7 RICHARD C. WESLEY,
8 DEBRA A. LIVINGSTON,
9 Circuit Judges.
10
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12 United States of America,
13 Appellee,
14
15 -v.- 17-1626-cr
16
17 Edwin Rivera,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: Louis M. Freeman, Freeman Nooter
22 & Ginsberg (Andrew M. J.
23 Bernstein, Bernstein, Clarke &
24 Moskovitz, New York, New York,
25 on the brief), New York, New
26 York.
27
1
1 FOR APPELLEE: Sagar K. Ravi, Assistant United
2 States Attorney, for George S.
3 Berman, United States Attorney
4 for the Southern District of New
5 York (Daniel B. Tehrani,
6 Assistant United States
7 Attorney, on the brief), New
8 York, New York.
9
10 Appeal from a judgment of the United States District
11 Court for the Southern District of New York (Buchwald, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED in part and REMANDED for the limited purpose of
16 appending a Statement of Reasons to the judgment of
17 conviction.
18
19 Edwin Rivera appeals from the judgment of the United
20 States District Court for the Southern District of New York
21 revoking Rivera’s term of supervised release and sentencing
22 him to five years’ imprisonment, which he challenges as
23 procedurally unreasonable. We assume the parties’
24 familiarity with the underlying facts, the procedural
25 history, and the issues presented for review.
26
27 Edwin Rivera pled guilty in June 2011 to using and
28 carrying a firearm during and in relation to a drug
29 trafficking crime in violation of 18 U.S.C. §
30 924(c)(1)(A)(i), and was sentenced to a term of five years
31 imprisonment followed by three years of supervised release.
32 Rivera was released to supervision on October 16, 2014.
33
34 Shortly after he left the Government’s custody, Rivera
35 committed numerous supervised release violations. The
36 report submitted by the Probation Office to Judge Buchwald
37 documented four such violations: assault against his ex-
38 girlfriend and her minor daughter; the state crime of
39 criminal possession of a weapon; the federal crime of being
40 a felon in possession of a firearm; and use of a controlled
41 substance. After a hearing at which the Government offered
42 physical evidence, recorded calls and correspondence, and
43 the testimony of Rivera’s probation officer and a police
44 officer at the scene of the assault, Judge Buchwald entered
45 findings that Rivera committed all four violations.
46
2
1 The Government recommended the statutory maximum term
2 of imprisonment of five years. See 18 U.S.C. § 3583(e)(3).
3 It emphasized the need for deterrence; the continuing threat
4 Rivera posed to the public; and the severity of his
5 violations, which included violence and repeat firearm
6 offenses that were the subject of his original conviction.
7 Rivera’s counsel argued for a sentence of 12 months
8 imprisonment.
9
10 The court was not convinced by Rivera’s arguments that
11 he sought to turn his life around, and explained that Rivera
12 deserved the maximum sentence as he remained a “threat to
13 society,” who was “undeterred” from engaging in a wide range
14 of criminal conduct. J. App’x at 78. Rivera did not object
15 at sentencing to the court’s findings or sentence.
16 Appellant’s Br. at 12.
17
18 On appeal, Rivera challenges the five year sentence as
19 procedurally unreasonable. We review Rivera’s procedural
20 challenge for plain error. See United States v.
21 Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008) (citing United
22 States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007));
23 Appellee’s Br. at 17. Procedural reasonableness review
24 considers whether the district court gave an adequate
25 explanation of the sentence in compliance with 18 U.S.C. §
26 3553(a). Verkhoglyad, 516 F.3d at 128. However, “we will
27 not assume a failure of consideration simply because a
28 district court fails to enumerate or discuss each § 3553(a)
29 factor individually.” Id. at 131. “[W]e presume that a
30 sentencing judge has faithfully discharged her duty to
31 consider the statutory factors,” and “do not require robotic
32 incantations” with respect to each of the Section 3553(a)
33 factors. United States v. Wagner-Dano, 679 F.3d 83, 89 (2d
34 Cir. 2012) (internal quotation marks omitted).
35
36 Rivera contends that there was an “insufficient oral
37 record or writ[ten] record[] to indicate[] that the district
38 court considered the applicable policy statements” as
39 required by Section 3553(c). Appellant’s Br. at 16, 18; see
40 18 U.S.C. § 3553(c) (“The court, at the time of sentencing,
41 shall state in open court the reasons for its imposition of
42 the particular sentence.”). But the district court reviewed
43 a thorough record and recited its reasons for adopting the
44 maximum sentence, including considerations contemplated by
45 the Section 3553(a) factors. Unlike the sentencing court in
46 United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005),
47 which offered “no reasons at all” for imposing a 24-month
3
1 imprisonment term, the district court here provided context
2 that justified its exercise of discretion to impose the
3 maximum sentence: Rivera’s status as a threat to society;
4 the odious nature of his assault and nature and
5 circumstances of his offenses; and the pattern of Rivera’s
6 prompt return to drug and firearm-related crimes after
7 release from prison. J. App’x at 74-75, 78. We conclude
8 that the sentencing judge “faithfully discharged her duty to
9 consider” the § 3553(a) factors, and that nothing more was
10 required. Wagner-Dano, 679 F.3d at 89; see also United
11 States v. Goffi, 446 F.3d 319, 320-21 (2d Cir. 2006)
12 (justifying a sentence solely on the grounds “of the
13 criminal conduct that gave rise to the violation and the
14 need to protect society”).
15
16 Rivera makes the corollary argument that the district
17 court committed procedural error by emphasizing certain
18 factors and ignoring others. But there is no “require[ment]
19 that a district court refer specifically to every factor in
20 section 3553(a).” Goffi, 446 F.3d at 321. And Rivera
21 offers no compelling reason to assume that the court
22 arbitrarily considered some factors and not others. Judge
23 Buchwald did consider counsel’s arguments as to Rivera’s
24 substance abuse and family life, but was unpersuased.
25 Rivera’s procedural unreasonableness claim fails.
26
27 Finally, the Government has consented to a limited
28 remand for the purpose of memorializing the stated reasons
29 for sentencing. See 18 U.S.C. § 3553(c)(2). We grant
30 remand for the court to perform this task. See Verkhoglyad,
31 516 F.3d at 134; United States v. Chandler, 543 F. App’x 78,
32 81-82 (2d Cir. 2013)(summary order).
33
34 For the foregoing reasons, and finding no merit in
35 Rivera’s other arguments, we hereby AFFIRM the judgment of
36 the district court and REMAND for the limited purpose of
37 appending a Statement of Reasons to the judgment of
38 conviction.
39
40 FOR THE COURT:
41 CATHERINE O’HAGAN WOLFE, CLERK
42
4