14-3768
United States v. Jose Roque

                            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 Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of
January, two thousand sixteen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         DENNIS JACOBS,
         RICHARD C. WESLEY,
               Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                       v.                                           No. 14-3768

JOSE ROQUE,

         Defendant-Appellant.
________________________________________________

For Appellee:                            RAHUL KALE, Assistant United States Attorney (Tracy
                                         Lee Dayton, Assistant United States Attorney, on the


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                                         brief), for Deirdre M. Daly, United States Attorney for
                                         the District of Connecticut, New Haven, Connecticut.

For Defendant-Appellant:                 MICHAEL R. HASSE, The Hasse Law Firm, New
                                         London, Connecticut.


       Appeal from the United States District Court for the District of Connecticut
(Bryant, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Jose Roque appeals from a judgment of conviction and sentence entered in the

United States District Court for the District of Connecticut (Bryant, J.). A jury found Roque

guilty of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2), and the district court sentenced Roque to 180 months’ incarceration,

the mandatory minimum term in light of Roque’s qualification as an Armed Career Criminal, see

id. § 924(e)(1). On appeal, Roque argues, first, that the government failed to comply with its

obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S.

150 (1972), and, second, that his sentence constitutes cruel and unusual punishment in violation

of the Eighth Amendment. We assume the parties’ familiarity with the relevant facts and the

procedural history of the case.

       Under Brady and its progeny, “[t]he government has a duty to disclose all material

evidence favorable to a criminal defendant.” United States v. Triumph Capital Grp., Inc., 544

F.3d 149, 161 (2d Cir. 2008). “[A]s long as a defendant possesses Brady evidence in time for its

effective use, the government has not deprived the defendant of due process of law simply



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because it did not produce the evidence sooner. There is no Brady violation unless there is a

reasonable probability that earlier disclosure of the evidence would have produced a different

result at trial . . . .” United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001).

       Here, Roque received the evidence that he now claims was suppressed—the positive drug

test of a detective who took photos of the scene of Roque’s arrest and transported from the scene

to the police station the firearm Roque was convicted of possessing—eleven days before the start

of the presentation of evidence. That amount of time was sufficient for Roque to make use of the

purported impeachment material at trial or to ask for an adjournment, which he declined to do.

See United States v. Douglas, 525 F.3d 225, 245-46 (2d Cir. 2008) (no Brady violation where

290 pages of purported impeachment material was disclosed on the Friday before trial); cf.

United States v. Moreno, 727 F.3d 255, 262 (3d Cir. 2013) (no Brady violation where defendant

“did not request a continuance, even though the District Court offered one”). Further, the

detective did not testify at trial; the jury was, nevertheless, informed about the detective’s

involvement in the investigation and his positive drug test; and Roque has not even attempted,

other than in vague and conclusory terms, to explain how earlier disclosure would have enabled

him to make better use of the evidence and thereby produce a reasonable probability of a

different result at trial. Accordingly, we find no violation of Roque’s rights under Brady.

       We also reject Roque’s assertion that his sentence of 180 months’ imprisonment, the

mandatory minimum, violated the Eight Amendment’s prohibition of cruel and unusual

punishment. “‘[T]he Eighth Amendment forbids only extreme sentences that are grossly

disproportionate to the crime,’ and in a noncapital case, it is ‘exceedingly rare’ to uphold a claim



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that a sentence within the statutory limits is disproportionately severe.” United States v.

Caracappa, 614 F.3d 30, 44 (2d Cir. 2010) (quoting United States v. Yousef, 327 F.3d 56, 163

(2d Cir. 2003)) (emphasis in original). We have previously rejected Eighth Amendment

challenges to the application of the statutory minimum under the Armed Career Criminals Act.

See, e.g., United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008). Nothing in Roque’s case

warrants a different result. Even if we disregard, as Roque asks, his convictions resulting from

Alford pleas, see North Carolina v. Alford, 400 U.S. 25 (1970), Roque still has, inter alia, two

previous convictions for assault in the first degree and one conviction each for robbery in the

first degree and escape in the first degree. In light of Roque’s recidivism, his sentence of fifteen

years’ imprisonment for unlawful possession of a firearm does not violate the Eight Amendment.

See United States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004) (per curiam) (“[T]he Supreme Court

has long recognized the propriety under the Eighth Amendment of subjecting recidivists to

enhanced penalties.”).

       We have considered all of Roque’s remaining arguments, and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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