     12-1527-cr
     United States v. Jones

                          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 18th day of July, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                SUSAN L. CARNEY,
 9                CHRISTOPHER F. DRONEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               12-1527-cr
17
18       RAKEEM FIGUEROA, AKA RAWLY, JAMEL
19       JORDAN, AKA JIGGA,
20                Defendants,
21
22       RASHEEN JONES, AKA EASY,
23                Defendant-Appellant.
24       - - - - - - - - - - - - - - - - - - - -X
25
26       FOR APPELLANT:                        MARY ANNE WIRTH, Bleakley Platt
27                                             & Schmidt, LLP, White Plains,
28                                             New York.

                                                  1
 1
 2   FOR APPELLEES:             MATTHEW S. AMATRUDA, Assistant
 3                              United States Attorney (Emily
 4                              Berger, Assistant United States
 5                              Attorney, on the brief), for
 6                              Loretta E. Lynch, United States
 7                              Attorney for the Eastern
 8                              District of New York, Brooklyn,
 9                              New York.
10
11        Appeal from a judgment of the United States District
12   Court for the Eastern District of New York (Ross, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the judgment of the district court be
16   AFFIRMED.
17
18        Rasheen Jones appeals from the judgment of the United
19   States District Court for the Eastern District of New York
20   (Ross, J.), sentencing him to 48 months’ imprisonment and
21   three years’ supervised release on his conviction (resulting
22   from a guilty plea) for conspiring to distribute and possess
23   with intent to distribute cocaine base (in violation of 18
24   U.S.C. §§ 841(a)(1), 841(b)(1), 846). We assume the
25   parties’ familiarity with the underlying facts, the
26   procedural history, and the issues presented for review.
27
28        Jones argues that the sentence improperly took into
29   account his involvement in the attempted robbery and felony-
30   murder of gang member Hercules Jones (no relation). We
31   review all sentences for reasonableness. United States v.
32   Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam) (citing
33   United States v. Booker, 543 U.S. 220, 260-62 (2005)). The
34   reasonableness inquiry encompasses an assessment of the
35   procedures used to arrive at a sentence (i.e., procedural
36   reasonableness) and an assessment of the length of sentence
37   (i.e., substantive reasonableness). Cossey, 632 F.3d at 86.
38   “The procedural inquiry focuses primarily on the sentencing
39   court’s compliance with its statutory obligation to consider
40   the factors detailed in 18 U.S.C. § 3553(a), while the
41   substantive inquiry assesses the length of the sentence
42   imposed in light of the § 3553(a) factors.” United States
43   v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (internal
44   quotation marks and citations omitted).

                                  2
 1        A district court may consider unrelated criminal
 2   conduct in sentencing if it can be proven by a preponderance
 3   of the evidence, even if a defendant has been acquitted of
 4   that conduct. United States v. Watts, 519 U.S. 148, 157
 5   (1997) (per curiam); see also Alleyne v. United States, 133
 6   S. Ct. 2151, 2163 (2013) (“We have long recognized that
 7   broad sentencing discretion, informed by judicial
 8   factfinding, does not violate the Sixth Amendment.”); United
 9   States v. Broxmeyer, 699 F.3d 265, 293 (2d Cir. 2012);
10   United States v. Wernick, 691 F.3d 108, 110-11 (2d Cir.
11   2012). After a thorough Fatico hearing, the district court
12   found by a preponderance of evidence that Jones was involved
13   in the murder of Hercules, an offense for which Jones was
14   never charged. In sentencing, the district court made clear
15   that it was not punishing Jones for his role in the murder,
16   but that Jones’s involvement was simply one relevant
17   consideration under 18 U.S.C. § 3553(a). The 48-month
18   sentence was justified by, among other valid considerations,
19   the seriousness of his offense, the lengthy criminal
20   history, and the likelihood of recidivism. This sentence
21   was both procedurally and substantively reasonable.
22
23        For the foregoing reasons, and finding no merit in
24   Jones’s other arguments, we hereby AFFIRM the judgment of
25   the district court.
26
27                              FOR THE COURT:
28                              CATHERINE O’HAGAN WOLFE, CLERK
29
30
31




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