19-2529-cr United States of America v. Fernandez-Rosa

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.

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 3rd day of June, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, WILLIAM J. NARDINI, Circuit Judges, GARY S. KATZMANN, Judge.* _______________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 19-2529

HECTOR EMILIO FERNANDEZ-ROSA,

Defendant-Appellant. † _______________________________________

* Judge Gary S. Katzmann, of the United States Court of International Trade, sitting by designation. † The Clerk of Court is respectfully directed to amend the official caption as set forth above. FOR APPELLEE: EMIL J. BOVE III (Matthew LaRoche and Karl Metzner, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY

FOR DEFENDANT-APPELLANT: ALESSANDRA DEBLASIO, ESQ., New York, NY

On appeal from the United States District Court for the Southern District of New

York (Richard J. Sullivan, United States Circuit Judge for the Second Circuit, sitting by

designation).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court entered on August 5, 2019, is

AFFIRMED.

Defendant-Appellant Hector Emilio Fernandez-Rosa appeals from a judgment of

conviction and sentence imposed on August 2, 2019, following his guilty plea to one

charge of conspiracy to distribute and possess cocaine, in violation of

. He

was sentenced principally to a term of life in prison. On direct appeal, Fernandez-Rosa

challenges the sentencing proceedings before the district court, including the procedural

and substantive reasonableness of his sentence. We assume the reader’s familiarity with

the case.

2 In reviewing Fernandez-Rosa’s sentencing challenges, “we apply ‘a particularly

deferential form of abuse-of-discretion review,’ and will not vacate a sentence unless it is

either procedurally or substantively unreasonable.” United States v. Clarke,

(2d Cir. 2020) (quoting United States v. Cavera,

, 188 n.5 (2d Cir. 2008) (en

banc)). A district court commits “procedural error” if it improperly calculates the

Sentencing Guidelines range, fails to consider the sentencing factors set forth in

(a), bases its sentence on a clearly erroneous finding of fact, or fails to adequately

explain the chosen sentence.

(citing Cavera,

). A sentence is

substantively unreasonable if it is “shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.” United States v. Douglas,

(2d Cir.

2013) (quoting United States v. Rigas,

(2d Cir. 2009)); see also Cavera,

(explaining that a sentence is substantively unreasonable when it “cannot be

located within the range of permissible decisions” (quoting Rigas, 490 F.3d at 238)).

Applying these standards, we have thoroughly reviewed the record on appeal and

conclude that Fernandez-Rosa’s sentence is both procedurally and substantively

reasonable. We further find no merit in Fernandez-Rosa’s claim of misconduct, bad faith

or otherwise, on the part of the Government at sentencing. We have considered

3 Fernandez-Rosa’s remaining arguments and conclude that they are without merit. For

the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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