     14-1756
     United States v. Frances

                          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 27th day of March, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                GARY L. SHARPE,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                     Appellee,
15
16                    -v.-                                               14-1756
17
18       ISAAC FRANCES, A/K/A JACQUES FRANCES,
19                     Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        HARVEY L. GREENBERG, Greenberg &
23                                             Wilner, LLP, New York, New York.
24



                *
               The Honorable Gary L. Sharpe, Chief District Judge
         for the United States District Court for the Northern
         District of New York, sitting by designation.
 1   FOR APPELLEE:              DREW JOHNSON-SKINNER (with Brian
 2                              A. Jacobs and Kathryn Martin)
 3                              for Preet Bharara, United States
 4                              Attorney for the Southern
 5                              District of New York, New York,
 6                              New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Seibel, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Isaac Frances appeals from an amended judgment entered
16   on May 2, 2014, in the United States District Court for the
17   Southern District of New York (Seibel, J.), revoking his
18   term of probation and sentencing him to a term of four
19   months’ imprisonment and three years’ supervised release.
20   We assume the parties’ familiarity with the underlying
21   facts, the procedural history, and the issues presented for
22   review.
23
24        In 2009, after a guilty plea, Frances was sentenced
25   principally to a term of five years’ probation. During his
26   probationary period, Frances was arrested and charged, in
27   state court, with sexual assault. Based on these charges,
28   the Probation Office petitioned the district court to revoke
29   his probation. Frances, who was ultimately acquitted of the
30   charges in state court, denied the specifications set forth
31   in the petition to revoke his probation. Prior to an
32   evidentiary hearing, the parties agreed that the government
33   bore the burden of proof by a preponderance of the evidence.
34
35        Observing that this was a very close case, the district
36   court ultimately found that the government sustained its
37   burden of proving, by a preponderance, four of the five
38   specifications charged against Frances. On appeal, Frances
39   challenges the sufficiency of the evidence that supported
40   revocation of his probation and the reasonableness of the
41   sentence imposed.
42
43        “On appeal we will reverse the district court’s finding
44   of a violation of probation only if the district court has
45   abused its discretion.” United States v. Lettieri, 910 F.2d
46   1067, 1068 (2d Cir. 1990). The district court need only be
47   reasonably satisfied that a probationer has failed to comply

                                  2
 1   with the conditions of probation to revoke a sentence.”
 2   United States v. Colasuonno, 697 F.3d 164, 181 (2d Cir.
 3   2012) (internal quotation marks omitted). We have not
 4   expressly considered whether the preponderance standard
 5   always satisfies the “reasonable satisfaction” standard, and
 6   have no occasion to do so here. Frances has waived any
 7   challenge to the revocation of his probation on that ground.
 8   Although the district court acknowledged that this case is a
 9   close one, its findings of fact were not clearly erroneous
10   and we therefore reject Frances’s sufficiency challenge.
11   See id. at 181; see also United States v. Iodice, 525 F.3d
12   179, 185 (2d Cir. 2008).
13
14        Frances’s challenge to his sentence is without merit.
15   The district court appropriately considered the factors set
16   forth in 18 U.S.C. § 3553(a) and this Court will not
17   “substitute [its] own judgment for the district court’s on
18   the question of what is sufficient to meet the § 3553(a)
19   considerations in any particular case.” United States v.
20   Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc). The
21   sentence imposed was both procedurally and substantively
22   reasonable.
23
24        For the foregoing reasons, and finding no merit in
25   Frances’s other arguments presented on appeal, we hereby
26   AFFIRM the judgment of the district court.
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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