     13-4833
     United States v. DiRose

                          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 17th day of October, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                CHRISTOPHER F. DRONEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-4833
16
17       RICARDO A. DIROSE, aka Richard Thomas,
18       aka Rich Decchio, aka Ricardo Disrof,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Gene V. Primono (with Molly
23                                             Corbett), Federal Public
24                                             Defender’s Office, Albany, New
25                                             York.
26
27       FOR APPELLEE:                         Robert A. Sharpe (with Rajit S.
28                                             Dosanjh), for Richard S.

                                                  1
 1                              Hartunian, U.S. Attorney for the
 2                              Northern District of New York,
 3                              Albany, New York.
 4
 5        Appeal from a judgment of the United States District
 6   Court for the Northern District of New York (Scullin, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 9   AND DECREED that the judgment of the district court be
10   AFFIRMED.
11
12        Ricardo DiRose appeals from the judgment of the United
13   States District Court for the Northern District of New York
14   (Scullin, J.), sentencing DiRose to 24 months imprisonment
15   for two violations of conditions of supervised release. We
16   assume the parties’ familiarity with the underlying facts,
17   the procedural history, and the issues presented for review.
18
19        In 1998, the district court sentenced DiRose to
20   eighteen months imprisonment and three years supervised
21   release for conspiracy to commit tax fraud. Because of
22   unrelated, consecutive prison sentences, DiRose did not
23   begin his term of supervised release until August 5, 2005.
24   Within four days, he absconded. He never showed up to his
25   assigned residence or to an August 9, 2005, appointment with
26   his probation officer. DiRose was neither seen nor heard
27   from until more than eight years later, in November 2013,
28   when he was arrested in Florida. After returning in custody
29   to the Northern District of New York, DiRose admitted to two
30   violations of conditions of supervised release: failure to
31   report to his probation officer, and failure to notify his
32   probation officer of a change in residence. The district
33   court found that DiRose’s conduct represented Grade C
34   violations, that he had a criminal history category of VI,
35   and that the U.S. Sentencing Guidelines (“USSG”) advisory
36   range was eight to fourteen months imprisonment. The
37   district court imposed a sentence of 24 months imprisonment.
38
39        We review sentences for reasonableness, United States
40   v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
41   which “amounts to review for abuse of discretion,” United
42   States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en
43   banc). This standard “applies both to ‘the sentence itself’
44   and to ‘the procedures employed in arriving at the
45   sentence.’” United States v. Verkhoglyad, 516 F.3d 122, 127
46   (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d


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 1   19, 26 (2d Cir. 2006), abrogated on other grounds by Rita v.
 2   United States, 551 U.S. 338 (2007)).
 3
 4        DiRose raised no objection to the procedure surrounding
 5   and explanation of his sentence in the district court. He
 6   now raises three such challenges, and each is subject to the
 7   plain error standard. See United States v. Wagner-Dano, 679
 8   F.3d 83, 88, (2d Cir. 2012).
 9
10        DiRose first challenges his sentence on the ground that
11   the district court failed to explain how his medical
12   condition was taken into account. Procedural reasonableness
13   requires a district court to consider “the need for the
14   sentence imposed . . . to provide the defendant with needed
15   . . . medical care.” 18 U.S.C. § 3553(a)(2)(D); see id.
16   § 3583(e). We presume that a sentencing court did consider
17   this factor, like all statutory factors, unless the record
18   suggests otherwise. Fernandez, 443 F.3d at 30. In this
19   case, DiRose’s counsel identified a variety of health issues
20   to the district court. The government responded that the
21   medical condition “doesn’t prevent him from continuing to
22   commit crimes and not leading a law abiding life.” This
23   discussion at DiRose’s sentencing reinforces the presumption
24   that the district court took all of the required factors
25   into account.
26
27        DiRose further attacks the procedural reasonableness of
28   the sentence by arguing that the district court improperly
29   based an above-Guidelines sentence upon a reason already
30   incorporated into the Guidelines’ advisory range:
31   specifically, “breach of trust” appears both in the policy
32   statement of the Sentencing Guidelines concerning violations
33   of supervised release, see USSG ch. 7, pt. A, ¶ 3(b), and in
34   the district court’s explanation for the above-Guidelines
35   sentence. This is not error. The Guidelines’ policy
36   statement presents “the extent of the breach of trust” as a
37   critical factor in determining the appropriate sentence for
38   a violation of supervised release. Id. When the district
39   court used the extent of DiRose’s breach of trust as a
40   determinant of his above-Guidelines sentence, it gave effect
41   to that policy statement.
42
43        Finally, DiRose contends that his sentence is
44   procedurally unreasonable because the district court
45   inappropriately considered the crimes that DiRose committed
46   while a fugitive. The district court made clear at
47   sentencing that it considered these crimes only as evidence

                                  3
 1   of the extent of DiRose’s breach of trust. This use of
 2   DiRose’s conduct while a fugitive was wholly within the
 3   district court’s discretion.
 4
 5        DiRose characterizes some of these arguments as bearing
 6   upon substantive reasonableness. All the arguments are in
 7   essence procedural.
 8
 9        DiRose has not identified any error--and certainly no
10   plain error--in his sentencing. For the foregoing reasons,
11   and finding no merit in DiRose’s other arguments, we hereby
12   AFFIRM the judgment of the district court.
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16
17




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