     08-2380-cr
     United States of America v. Rojas

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 20 th day of January, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                PETER W. HALL
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       United States of America,
14                Appellee,
15
16                    -v.-                                               08-2380-cr
17
18       JUNIOR ROJAS, also known as Ron John,
19       also known as Ron Joe, also known as
20       Pelon
21                Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       APPEARING FOR APPELLANT:               BETH M. FARBER, Esq., New York,
25                                              NY.
26
27       APPEARING FOR APPELLEES:               SARAH Y. LAI, Katherine Polk
28                                              Failla, for Preet Bharara,
29                                              United States Attorney for the
30                                              Southern District of New York,
31                                              New York, NY.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Buchwald, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Junior Rojas pled guilty to one count of conspiring to
 9   deal drugs (cocaine) and one count of money laundering. 21
10   U.S.C. § 846; 18 U.S.C. § 1956(h). We assume the parties’
11   familiarity with the underlying facts, the procedural
12   history, and the issues presented for review.
13
14        The guideline range for Rojas’s sentence was 168 to 210
15   months; Rojas asserts no procedural error. He argues only
16   that his sentence of 108 months’ incarceration (plus five
17   years of supervised release) is substantively unreasonable.
18
19        Substantive reasonableness is reviewed under “a
20   deferential abuse-of-discretion standard.” United States v.
21   Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc).
22
23        The claim of substantive error is that the court failed
24   to consider whether the powder cocaine sentence guidelines
25   are improperly high and make a ruling on that point. As
26   Rojas did not argue this below, he concedes that this review
27   is conducted under a plain error standard.
28
29        Even if his claim were properly preserved, there is no
30   basis in law for requiring district courts to explicitly
31   consider whether to reject the applicable guideline range as
32   a policy matter before sentencing a defendant. The Supreme
33   Court has allowed district courts to sentence below a
34   guideline range due to a policy disagreement; but it has
35   never required them to first affirmatively state whether or
36   not they disagree with sentencing guidelines as a policy
37   matter. See Kimbrough v. United States, 552 U.S. 85, 108
38   (2007). Further, simply because a district court does not
39   mention a relevant consideration does not mean it failed to
40   give it consideration. See United States v. Fernandez, 443
41   F.3d 19, 30 (2d Cir. 2006).
42
43        Finding no merit in the defendant’s arguments, we
44   hereby AFFIRM the judgment of the district court.
45
46                              FOR THE COURT:
47                              CATHERINE O’HAGAN WOLFE, CLERK
48
49                              By:___________________________

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