17‐3925‐cr United States v. Fernandez 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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of December, two thousand eighteen.

PRESENT: ROBERT D. SACK, BARRINGTON D. PARKER, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐3925‐cr

JOSEPH FERNANDEZ, Defendant‐Appellant.

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FOR APPELLEE: Jo Ann M. Navickas, Sarah Evans, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: John S. Wallenstein, Law Office of John S. Wallenstein, Garden City, New York.

Appeal from the United States District Court for the Eastern District of

New York (Mauskopf, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Joseph Fernandez appeals from a judgment entered

November 29, 2017 sentencing him to 18 monthsʹ imprisonment for violating the terms

of his supervised release, to be served consecutively to his state court sentence for the

underlying offense that was the basis for the violation. We assume the partiesʹ

familiarity with the underlying facts, procedural history, and issues on appeal.

Between May 22, 2015 and August 11, 2015, while on supervised release

from a 2013 federal drug conviction, Fernandez sold cocaine, heroin, and fentanyl to

New York City Police Department undercover officers on thirteen occasions.

Thereafter, in New York State court, Fernandez pleaded guilty to criminal sale of a

controlled substance in the third degree and was sentenced to 6 yearsʹ imprisonment.

Based on this state conviction, he pleaded guilty in the district court to violating his

supervised release. With a Grade A violation and a criminal history category of III at

the time of his original sentence, Fernandezʹs sentencing range under the United States

Sentencing Guidelines (the ʺGuidelinesʺ) for the violation was 18 to 24 months. Finding

that Fernandezʹs conduct was a serious breach of trust, the district court sentenced

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Fernandez to 18 monthsʹ imprisonment to run consecutively to his undischarged state

court sentence.

On appeal, Fernandez challenges the procedural and substantive

reasonableness of his sentence. We review a district courtʹs sentence imposed for a

violation of supervised release for procedural and substantive reasonableness, under a

deferential abuse of discretion standard. United States v. Aldeen,

(2d

Cir. 2015).

I. Procedural Reasonableness

Fernandez argues that the district court committed procedural error in

ordering his federal sentence to be served consecutively to his state sentence. He

contends that the district court failed to consider U.S.S.G. § 5G1.3(b), which provides for

concurrent sentences when an undischarged ʺterm of imprisonment resulted from

another offense that is relevant conduct to the instant offense.ʺ U.S.S.G. § 5G1.3(b). He

argues that the facts underlying his state court conviction are ʺrelevant conductʺ

pursuant to § 1B1.3(a)(1).

Fernandezʹs reliance on § 5G1.3(b) is misplaced as that provision applies

to a new federal conviction and not the supervised release violation itself. United States

v. Cochrane,

, 347 n.1 (6th Cir. 2012). As Application Note 4(C) explains,

§ 5G1.3(d) applies where ʺthe defendant was on federal or state probation, parole, or

supervised release at the time of the instant offense and has had such probation, parole,

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or supervised release revoked.ʺ U.S.S.G. § 5G1.3 cmt. n.4(C). In any event, in these

circumstances, the sentencing court has discretion to impose a sentence to run

ʺconcurrently, partially concurrently, or consecutively to the prior undischarged term of

imprisonment.ʺ U.S.S.G. § 5G1.3(d).

The provisions governing supervised release violations are set forth in the

policy statements contained in Chapter 7 of the Guidelines. In Chapter 7, the

Commission recommends that the punishment for a violation of supervised release be

consecutive to any sentence imposed for the underlying offense. Section 7B1.3(f)

provides that any term of imprisonment imposed upon the revocation of probation or

supervised release ʺshall be ordered to be served consecutively to any sentence of

imprisonment that the defendant is serving, whether or not the sentence of

imprisonment being served resulted from the conduct that is the basis of the revocation

of probation or supervised release.ʺ U.S.S.G. § 7B1.3(f).

Hence, the district court had discretion to impose a sentence to run

consecutively to the undischarged state sentence of imprisonment, and there was no

procedural error in its doing so.

II. Substantive Reasonableness

Fernandezʹs claim of substantive unreasonableness is also meritless.

While Fernandez maintains that the purpose of his supervised release violation

sentence could have been achieved through a one‐year and one‐day term of

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imprisonment, the 18‐month consecutive sentence imposed by the district court cannot

be said to fall outside ʺthe range of permissible decisions.ʺ See United States v. Cavera,

(2d Cir. 2008) (en banc) (quoting United States v. Rigas,

(2d Cir. 2007)). Contrary to Fernandezʹs assertions, the record shows that the

district court considered the policy statements contained in Chapter 7 and the § 3553(a)

factors, and determined that an 18‐month sentence, which fell within the low end of the

agreed‐upon Guidelines range, was warranted due to the seriousness of Fernandezʹs

offense, his personal history, his continuing recidivism, and his serious breach of the

courtʹs trust. The district court also noted that Fernandez did not ʺdeserve[] a free ride

on the breach of trustʺ in light of the thirteen narcotics sales Fernandez completed or

facilitated while on supervised release. Appʹx at 62‐63. Under these circumstances,

Fernandez has failed to meet his ʺheavy burdenʺ of demonstrating that his sentence is

substantively unreasonable. See United States v. Broxmeyer,

(2d Cir.

2012).

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We have considered Fernandezʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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