18-1489-cr
United States v. Rodriguez

                                  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
8th day of July, two thousand nineteen.

Present:         ROSEMARY S. POOLER,
                 DENNY CHIN,
                 RICHARD J. SULLIVAN,
                             Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                    Appellee,

                             v.                                                18-1489-cr

NEFTY RODRIGUEZ,

                        Defendant-Appellant.
_____________________________________________________

For Appellant:                      Moira L. Buckley, Assistant Federal Defender, for Terry S. Ward,
                                    Federal Defender, Hartford, CT.

For Appellee:                       Jocelyn Courtney Kaoutzanis, Marc H. Silverman, Assistant
                                    United States Attorneys, for John H. Durham, United States
                                    Attorney for the District of Connecticut, New Haven, CT.

Appeal from the United States District Court for the District of Connecticut (Meyer, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-Appellant Nefty Rodriguez appeals from a judgment entered on May 3, 2018,
in the United States District Court for the District of Connecticut (Meyer, J.), sentencing him to
48 months’ imprisonment for his conviction after a plea of guilty of possession with intent to
distribute and distribution of heroin and crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(c). We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.

        Rodriguez primarily argues that: (1) the district court committed procedural error in its
upward variance or departure by relying on Section 5K2.2 of the Sentencing Guidelines, which
accounts for the extent of the victim’s injury, and Rodriguez’s Facebook posts as bases for an
increased sentence, and (2) the district court’s sentence was substantively unreasonable. We
reject each argument in turn.

        First, the district court did not commit procedural error. We look to whether the district
court erred by “failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51
(2007). The district court did not commit procedural error here. Under Section 5K2.2, the
victim’s permanent physical injury was a proper basis for increasing the sentence. See United
States v. Reyes, 557 F.3d 84, 88 (2d Cir. 2009).1 Additionally, the district court did not err by
relying in part on Rodriguez’s Facebook posts in its sentencing decision; its discussion of the
posts centered on their accurate content, not on clearly erroneous facts, and the district court
adequately explained its chosen sentence.

        Second, Rodriguez’s sentence was not substantively unreasonable. “[W]hen conducting
substantive review, we take into account the totality of the circumstances, giving due deference
to the sentencing judge’s exercise of discretion. . . .” United States v. Cavera, 550 F.3d 180, 190
(2d Cir. 2008). Rodriguez argues that the sentence was substantively unreasonable because
“none of the factors cited by the district court as justifying the sentence remove it from the realm
of typical drug distribution cases,” and this case is “in the heartland of § 2D1.1 cases.”
Appellant’s Reply Br. at 4. But the victim’s permanent physical injury takes this case out of the



1
  The district court also stated that, in the alternative, it would have increased Rodriguez’s
sentence on the basis of Section 5K2.2, which provides that “[i]f significant physical injury
resulted, the court may increase the sentence above the authorized guideline range” based on
considerations such as “the extent of the injury, the degree to which it may prove permanent, and
the extent to which the injury was intended or knowingly risked.” U.S.S.G. § 5K2.2. In
determining whether the government has presented sufficient facts to justify an upward departure
under Section 5K2.2, courts must apply the preponderance of the evidence standard. See United
States v. Rivalta, 892 F.2d 223, 230 (2d Cir. 1989). Here, the record clearly supports such
findings to justify a departure under Section 5K2.2.


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“heartland.” Against this backdrop of permanent injury, a 48-month sentence is well within “the
range of permissible decisions.” Cavera, 550 F.3d at 189 (internal quotation marks omitted).

        We have considered the remainder of Rodriguez’s arguments and find them to be without
merit. Accordingly, we hereby AFFIRM the district court’s judgment.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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