       08-3850-cr
       USA v. Henriquez-Alvarado

                          UNITED STATES COURT OF APPEALS
                                F OR THE S ECOND C IRCUIT

                                      SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. C ITATION TO SUMMARY ORDERS FILED
AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’ S L OCAL R ULE 32.1 AND
F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A BRIEF OR OTHER PAPER IN WHICH A LITIGANT
CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION
MUST EITHER BE TO THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION: “( SUMMARY
ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER
WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE
WITHOUT PAYMENT OF FEE ( SUCH AS THE DATABASE AVAILABLE AT HTTP:// WWW. CA2. USCOURTS. GOV/).
I F NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE
CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.

            At a stated Term of the United States Court of                 Appeals
       for the Second Circuit, held at the Daniel Patrick                 Moynihan
       United States Courthouse, 500 Pearl Street, in the                 City of
       New York, on the 11 th day of December, two thousand               and
       nine.

       Present:
                PIERRE N. LEVAL,
                BARRINGTON D. PARKER, JR.,
                RICHARD C. WESLEY,
                                   Circuit Judges.
       ____________________________________________________________

       UNITED STATES OF AMERICA,

                               Appellee,

                   - v. -                                    No. 08-3850-cr

       JOSE HENRIQUEZ-ALVARADO, ALSO KNOWN AS ANGEL L. ACEVEDO-
       PEREZ,

                               Defendant-Appellant.

       ____________________________________________________________

       For Defendant-Appellant:            DAVID A. LEWIS, Federal
                                           Defenders of New York, Inc.,

                                              1
                                Appeals Bureau, New York, N.Y.

     For Appellee:              N ICOLE W. FRIEDLANDER (Katherine
                                Polk Failla, of counsel), for
                                Preet Bharara, United States
                                Attorney for the Southern
                                District of New York, New York,
                                N.Y.
     ______________________


 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the order of the district court be

 3   AFFIRMED.

 4       Defendant-Appellant Jose Henriquez-Alvarado was

 5   convicted in the United States District Court for the

 6   Southern District of New York (Marrero, J.), upon a guilty

 7   plea, of one count of illegal reentry into the United States

 8   after a previous conviction of an aggravated felony in

 9   violation of 8 U.S.C. § 1326(a) and (b)(2).    He was

10   sentenced to 30 months of incarceration and three years of

11   supervised release and required to pay a $100 special

12   assessment.

13       It was not clearly erroneous for the district court to

14   determine that Defendant-Appellant did not, contrary to his

15   contention, return to the United States in order to gain

16   lawful employment so as to be able to provide medication for

17   his ailing parents and brother.   See United States v.

18   Garcia, 413 F.3d 201, 221-22 (2d Cir. 2005).    As the

19   district court noted, this contention was belied by


                                  2
 1   Defendant-Appellant’s subsequent possession of drugs and

 2   involvement with another individual in possession of drugs.

 3   Even if there were clear error in this finding, the district

 4   court indicated that any such error had no impact on the

 5   sentence because Defendant-Appellant’s narcotics-related

 6   arrests after reentry undermined his related request for

 7   leniency. See, e.g., United States v. Dos Reis, 369 F.3d

 8   143, 151 (2d Cir. 2004).

 9       Accordingly, the order of the district court is hereby

10   AFFIRMED.

11                              For the Court

12                              Catherine O’Hagan Wolfe, Clerk

13

14                              By: ________________________




                                  3
