15-2045(L)
United States v. Rivera

                     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 6th day of June, two thousand seventeen.

    PRESENT: AMALYA L. KEARSE,
             DENNIS JACOBS,
             DEBRA ANN LIVINGSTON,
                           Circuit Judges.

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    UNITED STATES OF AMERICA,
             Appellee,

                 -v.-                                               15-2045
                                                                    15-4068*

    PEDRO RIVERA, PEDRO GIL RIVERA ORTIZ
             Defendants-Appellants.
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    FOR APPELLANT:                        Robert J. Boyle, Law Office of
                                          Robert J. Boyle, New York, NY,
                                          for Defendant-Appellant Pedro
                                          Rivera.

           *
          The Clerk of Court is respectfully directed to amend
    the caption.
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                           Robert J. Sullivan, Jr., Law
                           Offices of Robert Sullivan,
                           Westport, CT, for Defendant-
                           Appellant Pedro Gil Rivera
                           Ortiz.

FOR APPELLEES:             Alina P. Reynolds, Marc H.
                           Silverman, for Deirdre M. Daly,
                           United States Attorney for the
                           District of Connecticut.

     Appeal from a judgment of 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 be
AFFIRMED.

     Defendant Pedro Rivera appeals from the judgment of the
United States District Court for the District of Connecticut
(Bryant, J.), sentencing him principally to 116 months of
imprisonment.1 Rivera pleaded guilty to conspiracy to
possess with intent to distribute 500 or more grams of
cocaine. He does not challenge his conviction, but argues
that his sentence was procedurally and substantively
unreasonable. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     1. Rivera claims that the district court committed
procedural error by applying Section 2D1.1(b)(1) of the U.S.
Sentencing Guidelines, which states that “[i]f a dangerous
weapon (including a firearm) was possessed, increase by 2
levels.”



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       Separately, the district court sentenced Defendant-
Appellant Pedro Gil Rivera Ortiz to 87 months of
imprisonment after Ortiz pleaded guilty to conspiracy to
possess with intent to distribute 500 or more grams of
cocaine. Ortiz’s lawyer filed a motion to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738
(1967), and the government moved for summary affirmance. We
grant both motions in a separate, simultaneously issued
order.
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     A mistake in a Guidelines calculation is procedural
error. United States v. Cavera, 550 F.3d 180, 190 (2d Cir.
2008) (in banc). “We review the district court’s
interpretation and application of the Sentencing Guidelines
de novo, and its findings of related fact for clear error.”
United States v. Smith, 215 F.3d 237, 239 (2d Cir. 2000)
(per curiam). “A finding is clearly erroneous when . . .
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. Cuevas, 496 F.3d 256, 267 (2d
Cir. 2007) (quoting United States v. Hazut, 140 F.3d 187,
190 (2d Cir. 1998)).

     “[O]nce the government has established that a weapon’s
presence was reasonably foreseeable to the defendant during
conduct (i.e., the storage and cutting of drugs) relevant to
the offense (i.e., distribution of drugs) at issue, the
[§ 2D1.1(b)(1)] enhancement will apply . . . unless the
defendant demonstrates that it is clearly improbable that
the weapon was connected with the drug offense.” Smith, 215
F.3d at 241 (citation omitted); see U.S. Sentencing
Guidelines Manual § 2D1.1 cmt. n.11(A) (U.S. Sentencing
Comm’n 2016) (“The enhancement should be applied if the
weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.”).

     When police arrived at Rivera’s apartment to arrest
him, they found an unloaded shotgun next to an open and
empty safe in Rivera’s closet. Drug paraphernalia were also
found in the apartment, including multiple cell phones and
an electronic scale. Rivera was not there, apparently
having fled after receiving a phone call informing him that
his parents (co-conspirators in the drug conspiracy) had
just been arrested. Rivera’s girlfriend was present and she
called Rivera, who then returned to the apartment and was
arrested.

     The district court found that Rivera stored drugs in
his apartment, based on the presence of the empty safe and
drug paraphernalia, the amount of drugs Rivera handled, and
the paucity of evidence that he stored the drugs elsewhere.
In light of that finding, the shotgun’s proximity to the
open safe, and the fact that Rivera had not demonstrated
that he was a hunter, the district court found that Rivera
used the shotgun to further his drug trafficking activities.
Because we cannot say that we are “left with the definite
and firm conviction” that the district court’s findings were

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erroneous, they survive clear error review. See Cuevas, 496
F.3d at 267. Given the supported finding that Rivera used
the shotgun to further his drug trafficking enterprise,
Rivera has obviously failed to “demonstrate[] that it is
clearly improbable that the weapon was connected with the
drug offense.” Smith, 215 F.3d at 241. Therefore, the
sentencing enhancement was appropriately applied.

     Rivera contended that he owned the shotgun for reasons
unrelated to his drug trafficking. At a minimum, however,
the finding that Rivera used the gun to further his drug
trafficking was a permissible view of the evidence. “When
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” United States v. Chalarca, 95 F.3d 239, 244 (2d
Cir. 1996) (quotation marks omitted). Consequently, we
affirm the district court’s application of the two-level
sentencing enhancement pursuant to Section 2D1.1(b)(1) of
the Sentencing Guidelines.

     2. Rivera argues that his sentence is substantively
unreasonable, mainly because the district court improperly
focused on the seriousness of Rivera’s crimes rather than
the other sentencing factors set out in 18 U.S.C. § 3553(a).
“[W]e do not consider what weight we ourselves would have
given a particular factor. Rather, we consider whether the
factor, as explained by the district court, can bear the
weight assigned to it under the totality of the
circumstances in the case.” Cavera, 550 F.3d at 191
(citation omitted). The district court in this case
thoroughly considered the mitigating factors advanced by
Rivera, as well as aggravating factors, and ultimately
sentenced Rivera to 116 months (five months below the bottom
of the guidelines range). We see no error.

     More generally, “[w]e 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.’” Id. at 189 (quoting
United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
Rivera served as a leader of a conspiracy that trafficked
large amounts of cocaine, and he possessed a weapon during
that conspiracy. The district court’s sentence is not
outside the range of permissible decisions. We decline to
disturb the sentence on substantive reasonableness grounds.



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     For the foregoing reasons, and finding no merit in
Rivera’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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