     13-2462-cr
     United States v. Rojas


                               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
     ASUMMARY 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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 27th day of August, two thousand fourteen.
 4
 5   PRESENT: RALPH K. WINTER,
 6                    REENA RAGGI,
 7                    SUSAN L. CARNEY,
 8                                    Circuit Judges.
 9   ----------------------------------------------------------------------
10   UNITED STATES OF AMERICA,
11                                    Appellee,
12
13                            v.                                              No. 13-2462-cr
14
15   ALEXI ROJAS, aka Sealed Defendant 2, aka Hermano,
16                          Defendant-Appellant,
17
18   RAFAEL ROJAS, aka Sealed Defendant 1, aka Ke-Kay,
19   ALVIN VICIOSO, aka Sealed Defendant 3, aka Noni,
20   EDGAR FELICIANO, aka Sealed Defendant 4, aka Eggie,
21   ARISTEDES COLUMBIE, aka Sealed Defendant 5, aka
22   Tito, JOSE VARGAS SANTOS, aka Sealed Defendant 6,
23   aka Tio, aka Jose L. Colon, JOSHUA NUNEZ, aka Sealed
24   Defendant 7, aka Primo, FREDDY BRATCHER, aka
25   Sealed Defendant 8, FNU LNU, aka Sealed Defendant 9,
26                                    Defendants.*
27   ----------------------------------------------------------------------

     *
         The Clerk of Court is directed to amend the official caption as shown above.

                                                          1
 1   APPEARING FOR APPELLANT:                    HENRY J. STEINGLASS, ESQ., New York,
 2                                               New York.
 3
 4   APPEARING FOR APPELLEE:                      BRIAN JACOBS (Hadassa R. Waxman, Brent
 5                                                S. Wible, on the brief), Assistant United States
 6                                                Attorneys, for Preet Bharara, United States
 7                                                Attorney for the Southern District of New York,
 8                                                New York, New York.
 9
10             Appeal from a judgment of the United States District Court for the Southern District

11   of New York (Katherine B. Forrest, Judge).

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

13   AND DECREED that the judgment entered on June 10, 2013, is AFFIRMED.

14             Defendant Alexi Rojas stands convicted of violating a condition of supervised

15   release prohibiting use of controlled substances, which was imposed as a result of his

16   earlier conviction of conspiracy to distribute and possess with intent to distribute at least

17   500 grams of cocaine and at least 100 grams of heroin. See 21 U.S.C. §§ 841(a)(1),

18   841(b)(1)(B), 846. Rojas both challenges his violation conviction and contends that his

19   24-month above-Guidelines prison sentence was procedurally and substantively

20   unreasonable. We assume the parties’ familiarity with the underlying facts and the record

21   of prior proceedings, which we reference only as necessary to explain our decision to

22   affirm.

23   1.        Conviction Challenge

24             A district court may revoke supervised release and require the defendant to serve a

25   prison term if the court “‘finds by a preponderance of the evidence that the defendant

26   violated a condition of supervised release.’” United States v. Glenn, 744 F.3d 845, 847


                                                    2
 1   (2d Cir. 2014) (quoting 18 U.S.C. § 3583(e)(3)). “A district court’s finding that a

 2   defendant has violated conditions of supervised release is reviewed for abuse of discretion,

 3   and its factual findings are reviewed for clear error.” Id. (internal citations omitted).

 4          Rojas contends that the district court erred in finding him to have violated his

 5   supervision in the absence of evidence of the laboratory procedures used to determine that

 6   the sweat patch Rojas was wearing tested positive for cocaine. We disagree. The

 7   Federal Rules of Evidence do not apply at supervised release revocation hearings; rather, a

 8   district court’s preponderance findings need be based only on “‘verified facts’ and

 9   ‘accurate knowledge.’” United States v. Bari, 599 F.3d 176, 179 (2d Cir. 2010) (quoting

10   Morrissey v. Brewer, 408 U.S. 471, 489 (1972)); see Fed. R. Evid. 1101(d)(3). That

11   requirement was satisfied here where the district court found that Rojas used cocaine after

12   (1) examining the laboratory report documenting the positive test and (2) crediting

13   testimony from Rojas’s probation officer, the technician who applied and removed the

14   sweat patch, and an expert familiar with the laboratory’s procedures, who opined that they

15   yield highly accurate results. Moreover, the district court found Rojas’s testimony that the

16   sweat patch may have been contaminated by environmental conditions not credible in light

17   of the large amount of cocaine detected in the sweat patch. “We accord strong deference

18   to a district court’s credibility determinations, particularly where that court based its

19   findings on such determinations.” United States v. Carlton, 442 F.3d 802, 811 (2d Cir.

20   2006). In sum, we identify no error in the district court’s determination that Rojas had

21   violated his supervised release by using cocaine.



                                                   3
 1   2.     Sentence Challenge

 2          a.     Procedural Reasonableness

 3          “The standard of review on the appeal of a sentence for violation of supervised

 4   release is . . . the same standard as for sentencing generally: whether the sentence imposed

 5   is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). Rojas argues

 6   that his sentence is procedurally unreasonable because the district court (1) gave

 7   insufficient weight to the recommended sentencing range in the applicable Guidelines

 8   policy statements and did not sufficiently explain its reasons for varying above the range;

 9   (2) did not address the need to avoid unwarranted disparities among similarly situated

10   defendants; (3) did not address the Guidelines Application Note requiring consideration of

11   substance abuse programs for defendants who fail drug tests; (4) accorded too much weight

12   to Rojas’s underlying offense conduct and his underlying lenient sentence; (5) accorded

13   too much weight to the breach of trust already accounted for in the Guidelines policy

14   statements; (6) failed adequately to explain how the sentence imposed was “sufficient, but

15   not greater than necessary” as required by 18 U.S.C. § 3553(a); and (7) incorrectly based

16   Rojas’s sentence on an erroneous and disputed view of his underlying offense conduct.

17   We review the procedural reasonableness of a sentence “under a deferential

18   abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)

19   (en banc) (internal quotation marks omitted). We identify no abuse here.

20          Rojas’s arguments challenging the weight afforded certain sentencing factors are

21   defeated by precedent. See United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir.

22   2008) (“[T]he weight to be afforded any § 3553(a) factor ‘is a matter firmly committed to

                                                  4
 1   the discretion of the sentencing judge and is beyond our review, as long as the sentence

 2   ultimately imposed is reasonable.’” (quoting United States v. Fernandez, 443 F.3d 19, 32

 3   (2d Cir. 2006))). First, the district court was required only to “consider” the policy

 4   statements’ recommended three-to-nine month prison range, which it plainly did, rather

 5   than to accord it any particular weight. United States v. Pelensky, 129 F.3d 63, 69 (2d Cir.

 6   1997); see 18 U.S.C. § 3553(a)(4)(B). Second, the district court adequately explained its

 7   reasons for varying above the range when it referenced the occurrence of Rojas’s violation

 8   shortly after he was placed on supervised release, his pattern of missed drug tests, the

 9   breach of trust evident from a violation following a significant downward variance in the

10   original sentence, and the need for specific deterrence. In these circumstances, no further

11   explanation was required to ensure procedural reasonableness. See United States v.

12   Verkhoglyad, 516 F.3d at 132–33 (“‘[A] court’s statement of its reasons for going beyond

13   non-binding policy statements in imposing a sentence after revoking a defendant’s

14   [probationary] term need not be as specific as has been required when courts departed from

15   guidelines that were, before Booker, considered to be mandatory’” (emphasis and

16   alteration in original) (quoting United States v. Lewis, 424 F.3d 239, 245 (2d Cir. 2005))).

17   Third, nothing in the record suggests that the district court afforded undue weight to

18   Rojas’s underlying offense conduct, and the district court was entitled to consider Rojas’s

19   underlying lenient sentence. Cf. U.S.S.G. § 7B1.4, cmt. n.4 (stating that “[w]here the

20   original sentence was the result of a downward departure . . . , an upward departure may be

21   warranted” in imposing sentence for violation of supervised release). Finally, the district

22   court did not run afoul of United States v. Sindima, 488 F.3d 81 (2d Cir. 2007), because it

                                                  5
 1   is clear from the record that the district court was not “sanctioning ‘primarily the

 2   defendant’s breach of trust.’” United States v. Verkhoglyad, 516 F.3d at 135 (quoting

 3   Sindima, 488 F.3d at 86).

 4          Rojas’s identification of error in the district court’s purported failure to consider

 5   particular factors is similarly meritless. “‘No robotic incantations are required to prove

 6   the fact of consideration,’ and we will not assume a failure of consideration simply because

 7   a district court fails to enumerate or discuss each § 3553(a) factor individually.” Id. at 131

 8   (quoting United States v. Fernandez, 443 F.3d at 30). First, the district court did not err in

 9   failing to consider the need to avoid unwarranted sentencing disparities. The district court

10   stated that it considered all § 3553(a) factors in determining the appropriate sentence, and

11   was not required specifically to discuss each factor. See id. at 132–33. Moreover, during

12   sentencing, Rojas’s counsel presented a disparity argument, and nothing in the record

13   indicates that the district court failed to consider it. See United States v. Fernandez, 443

14   F.3d at 29 (“[W]e entertain a strong presumption that the sentencing judge has considered

15   all arguments properly presented to her, unless the record clearly suggests otherwise.”).

16   Second, Rojas never drew the district court’s attention to the Application Note requiring

17   consideration of substance abuse programs where a defendant on supervised release fails a

18   drug test; accordingly, we review this claim solely for plain error. See United States v.

19   Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). We find no plain error, as the district court

20   based Rojas’s sentence on many other factors in addition to the failed drug test, and, in

21   view of his chronic failure to report for drug testing, was obviously not a good candidate

22   for an abuse program.

                                                   6
 1          Nor is there any merit in Rojas’s argument that the district court based the

 2   challenged sentence on an erroneous view of his underlying offense conduct. Rojas did

 3   not dispute the Presentence Report’s factual recitation of his offense conduct during his

 4   violation proceedings, and nothing in the record suggests that the district court based its

 5   sentence on any of the facts that Rojas now disputes. Moreover, Rojas’s argument that the

 6   district court erroneously believed that he had distributed heroin is meritless, as the district

 7   court merely noted—accurately—that the overall conspiracy trafficked in both heroin and

 8   cocaine.

 9          Accordingly, we conclude that the challenged sentence is not procedurally

10   unreasonable.

11          b.       Substantive Reasonableness

12          In arguing substantive unreasonableness, Rojas “bears a heavy burden because our

13   review of a sentence for substantive reasonableness is particularly deferential.” United

14   States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence on

15   substantive grounds “only in exceptional cases where the trial court’s decision cannot be

16   located within the range of permissible decisions.” United States v. Cavera, 550 F.3d at

17   189 (internal quotation marks omitted). That is not this case.

18          Rojas argues that his 24-month sentence was substantively unreasonable in light of,

19   inter alia, the three-to-nine month Guidelines range, his contention that most offenders

20   with similar supervision violations do not receive comparable jail sentences, and his lack

21   of other positive drug tests. We are not persuaded. We have previously affirmed

22   sentences substantially above a policy statement’s recommended range where

                                                    7
 1   circumstances warranted. See, e.g., United States v. Verkhoglyad, 516 F.3d at 134;

 2   United States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005). Here, Rojas’s challenged

 3   sentence fell within the broad range of reasonable sentences in light of his repeated failures

 4   to appear for drug tests as required by the Probation Department, his cocaine use shortly

 5   after beginning supervised release, and the significant leniency he received on his

 6   underlying sentence. In sum, because Rojas’s sentence was neither “shockingly high,

 7   shockingly low, [n]or otherwise unsupportable as a matter of law,” United States v. Rigas,

 8   583 F.3d 108, 123 (2d Cir. 2009), we cannot conclude that it was substantively

 9   unreasonable.

10   4.     Conclusion

11          We have considered Rojas’s remaining arguments and conclude that they are

12   without merit. Therefore, we AFFIRM the judgment of the district court.

13                                       FOR THE COURT:
14                                       CATHERINE O=HAGAN WOLFE, Clerk of Court
15




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