15-1017-cr
United States v. De Rivas


                             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 28th day of January, two thousand sixteen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                             No. 15-1017-cr

NORBERTO DE RIVAS, AKA Abraham Rivas-Rios,
AKA Luis Alcalar Vasquez,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                         PATRICK J. BROWN, Losi & Gangi, Buffalo,
                                                 New York.

APPEARING FOR APPELLEE:                          JOSEPH J. KARASZEWSKI, Assistant United
                                                 States Attorney, for William J. Hochul, Jr.,
                                                 United States Attorney for the Western District
                                                 of New York, Buffalo, New York.




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       Appeal from a judgment of the United States District Court for the Western District

of New York (Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 2, 2015, is AFFIRMED.

       Defendant Norberto De Rivas, who defrauded various branches of the Home Depot

across 17 states of a total of $77,577.90 by using false bar codes to purchase items and false

driver’s licenses to make fraudulent returns, appeals his 72-month prison sentence, an

upward departure from his 37-to-46-month Guidelines range. De Rivas asserts that the

sentence is substantively unreasonable because the district court relied on arrests and

pending charges, unreasonably found his criminal history to be understated, and placed

undue weight on his tattoo of a bar code on the back of his neck. The claimed errors must

be classified as procedural. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)

(en banc) (discussing errors in Guidelines calculation and understanding of departure

authority as procedurally unreasonable); id. (“A district court commits procedural error

where it . . . rests its sentence on a clearly erroneous finding of fact.”); United States v.

Juwa, 508 F.3d 694, 698–700 (2d Cir. 2007) (analyzing reliance on unproven criminal

charges under procedural unreasonableness). Because De Rivas failed to raise these

objections at his sentencing, our procedural review is limited to plain error. See United

States v. Zillgitt, 286 F.3d 128, 131 (2d Cir. 2002). While we have not decided whether

plain error review applies to an unpreserved substantive challenge, see United States v.


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Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014), De Rivas fails, in any event, to

demonstrate abuse of discretion, see United States v. Cavera, 550 F.3d at 189 (“We will . . .

set aside a district court’s substantive determination only in exceptional cases where the

trial court’s decision ‘cannot be located within the range of permissible decisions.’”

(emphasis in original) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007))).

In conducting our review, we assume the parties’ familiarity with the facts and the record

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

affirm.

1.        Consideration of Arrests and Charges

          De Rivas contends that the district court erred in referencing his “pending cases”

and “numerous warrants outstanding” in the midst of its lengthy sentencing discussion of

his criminal history. See J.A. 126. He is wrong. While a sentencing enhancement

cannot be based solely on unproved charges in an indictment, see United States v. Juwa,

508 F.3d at 700, the mere mention of such charges in a discussion of criminal history

otherwise focused on the defendant’s lengthy record of convictions, see J.A. 126–28, does

not constitute error, let alone plain error, see United States v. Matta, 777 F.3d 116, 124 (2d

Cir. 2015).

2.        Criminal History

          De Rivas argues that the district court impermissibly found Category V to

understate his criminal history.      This argument conflates a district court’s narrower


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authority to depart horizontally within the Guidelines framework, see U.S.S.G. § 4A1.3;

United States v. Preacely, 628 F.3d 72, 80 (2d Cir. 2010); United States v. Gayle, 389 F.3d

406, 409 (2d Cir. 2004), with its broader discretion to vary from the Guidelines to satisfy

the sentencing objectives of 18 U.S.C. § 3553(a), see United States v. Cavera, 550 F.3d at

189. Nothing in the record suggests that the district court misunderstood its sentencing

authority or improperly applied a Guidelines enhancement; rather, it chose to sentence

outside the Guidelines framework upon consideration of the § 3553(a) factors.

Accordingly, we reject this challenge on the merits.

3.     Defendant’s Tattoo

       As for the district court’s consideration of De Rivas’s bar-code tattoo, because this

was reflective of the modus operandi of the crime of conviction, we identify no error in its

consideration.   See 18 U.S.C. § 3553(a) (directing consideration of “nature and

circumstances of the offense” and “characteristics of the defendant”); id. § 3661 (stating

that “[n]o limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the United

States may receive and consider for the purpose of imposing an appropriate sentence”); see

also United States v. Alvarado Perez, 609 F.3d 609, 617–18 (4th Cir. 2010) (rejecting

procedural challenge to court’s § 3553(a) consideration of tattoo associated with gang

membership); United States v. Spotted Elk, 548 F.3d 641, 671 (8th Cir. 2008) (upholding

finding of knowledge of scope of conspiracy based in part on tattoo).


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4.     Substantive Reasonableness

       De Rivas having failed to demonstrate any error in the three ways specified, his

72-month sentence cannot be held substantially unreasonable given the sophistication and

geographic scope of his criminal behavior, his extensive criminal history, and the personal

characteristics identified by the district court. This is not an “exceptional case[] where the

trial court’s decision cannot be located within the range of permissible decisions.” United

States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted); see United States v.

Jones, 531 F.3d 163, 180–82 (2d Cir. 2008) (recognizing broad range of sentences reaching

beyond Guidelines that can be held substantively reasonable).

5.     Conclusion

       We have considered De Rivas’s remaining arguments, and we conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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