United States v. Rojas
Opinion of the Court
SUMMARY ORDER
Defendant Alexi Rojas stands convicted of violating a condition of supervised release prohibiting use of controlled substances, which was imposed as a result of his earlier conviction of conspiracy to distribute and possess with intent to distribute at least 500 grams of cocaine and at least 100 grams of heroin. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846. Rojas both challenges his violation conviction and contends that his 24-month above-Guidelines prison sentence was procedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Conviction Challenge
A district court may revoke supervised release and require the defendant to serve a prison term if the court “ ‘finds by a preponderance of the evidence that the defendant violated a condition of supervised release.’ ” United States v. Glenn, 744 F.3d 845, 847 (2d Cir. 2014) (quoting 18 U.S.C. § 3583(e)(3)). “A district court’s finding that a defendant has violated conditions of supervised release is reviewed for abuse of discretion, and its factual findings are reviewed for clear error.” Id. (internal citations omitted).
Rojas contends that the district court erred in finding him to have violated his supervision in the absence of evidence of the laboratory procedures used to deter
2. Sentence Challenge
a. Procedural Reasonableness
“The standard of review on the appeal of a sentence for violation of supervised release is ... the same standard as for sentencing generally: whether the sentence imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). Rojas argues that his sentence is proeedurally unreasonable because the district court (1) gave insufficient weight to the recommended sentencing range in the applicable Guidelines policy statements and did not sufficiently explain its reasons for varying above the range; (2) did not address the need to avoid unwarranted disparities among similarly situated defendants; (3) did not address the Guidelines Application Note requiring consideration of substance abuse programs for defendants who fail drug tests; (4) accorded too much weight to Rojas’s underlying offense conduct and his underlying lenient sentence; (5) accorded too much weight to the breach of trust already accounted for in the Guidelines policy statements; (6) failed adequately to explain how the sentence imposed was “sufficient, but not greater than necessary” as required by 18 U.S.C. § 3553(a); and (7) incorrectly based Rojas’s sentence on an erroneous and disputed view of his underlying offense conduct. We review the procedural reasonableness of a sentence “under a deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). We identify no abuse here.
Rojas’s arguments challenging the weight afforded certain sentencing factors are defeated by precedent. See United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008) (“[T]he weight to be afforded any § 3553(a) factor ‘is a matter firmly committed to the discretion of the sentencing judge and is beyond our review, as long as the sentence ultimately imposed is reasonable.’ ” (quoting United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006))). First, the district court was required only to “consider” the policy statements’ recommended three-to-nine month prison range, which it plainly did, rather than to accord it any particular weight. United States v. Pelensky, 129 F.3d 63, 69 (2d Cir. 1997); see 18 U.S.C. § 3553(a)(4)(B). Second, the
Rojas’s identification of error in the district court’s purported failure to consider particular factors is similarly meritless. “ ‘No robotic incantations are required to prove the fact of consideration,’ and we will not assume a failure of consideration simply because a district court fails to enumerate or discuss each § 3553(a) factor individually.” Id. at 131 (quoting United States v. Fernandez, 443 F.3d at 30). First, the district court did not err in failing to consider the need to avoid unwarranted sentencing disparities. The district court stated that it considered all § 3553(a) factors in determining the appropriate sentence, and was not required specifically to discuss each factor. See id. at 132-33. Moreover, during sentencing, Rojas’s counsel presented a disparity argument, and nothing in the record indicates that the district court failed to consider it. See United States v. Fernandez, 443 F.3d at 29 (“[W]e entertain a strong presumption that the sentencing judge has considered all arguments properly presented to her, unless the record clearly suggests otherwise.”). Second, Rojas never drew the district court’s attention to the Application Note requiring consideration of substance abuse programs where a defendant on supervised release fails a drug test; accordingly, we review this claim solely for plain error. See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). We find no plain error, as the district court based Rojas’s sentence on many other factors in addition to the failed drug test, and, in view of his chronic failure to report for drug testing, was obviously not a good candidate for an abuse program.
Nor is there any merit in Rojas’s argument that the district court based the challenged sentence on an erroneous view of his underlying offense conduct. Rojas did not dispute the Presentence Report’s factual recitation of his offense conduct during his violation proceedings, and nothing in the record suggests that the district court based its sentence on any of the facts that Rojas now disputes. Moreover, Rojas’s argument that the district court erro
Accordingly, we conclude that the challenged sentence is not procedurally unreasonable.
b. Substantive Reasonableness
In arguing substantive unreasonableness, Rojas “bears a heavy burden because our review of a sentence for substantive reasonableness is particularly deferential.” United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence on substantive grounds “only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted). That is not this case.
Rojas argues that his 24-month sentence was substantively unreasonable in light of, inter alia, the three-to-nine month Guidelines range, his contention that most offenders with similar supervision violations do not receive comparable jail sentences, and his lack of other positive drug tests. We are not persuaded. We have previously affirmed sentences substantially above a policy statement’s recommended range where circumstances warranted. See, e.g., United States v. Verkhoglyad, 516 F.3d at 134; United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005). Here, Rojas’s challenged sentence fell within the broad range of reasonable sentences in light of his repeated failures to appear for drug tests as required by the Probation Department, his cocaine use shortly after beginning supervised release, and the significant leniency he received on his underlying sentence. In sum, because Rojas’s sentence was neither “shockingly high, shockingly low, [n]or otherwise unsupportable as a matter of law,” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009), we cannot conclude that it was substantively unreasonable.
4. Conclusion
We have considered Rojas’s remaining arguments and conclude that they are without merit. Therefore, we AFFIRM the judgment of the district court.
Reference
- Full Case Name
- United States v. Alexi ROJAS, aka Sealed 2, aka Hermano, Rafael Rojas, aka Sealed 1, aka Ke-Kay, Alvin Vicioso, aka Sealed 3, aka Noni, Edgar Feliciano, aka Sealed 4, aka Eggie, Aristedes Columbie, aka Sealed 5, aka Tito, Jose Vargas Santos, aka Sealed 6, aka Tio, aka Jose L. Colon, Joshua Nunez, aka Sealed 7, aka Primo, Freddy Bratcher, aka Sealed 8, Fnu Lnu, aka Sealed 9
- Status
- Published