11-4714-cr
United States v. Deopersaud

                  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 May, two thousand thirteen.

PRESENT:    DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges,
            JOHN F. KEENAN,
                      District Judge.*

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UNITED STATES OF AMERICA,
                    Appellee,

                        -v-                                  11-4714-cr

RODOLFO GARCIA, JOSE RAMON DIAZ, ARCESIO
MAURATH, ELIAS VEGA,
                    Defendants,

KARON DEOPERSAUD,
                        Defendant-Appellant.

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      *
          The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
FOR APPELLEE:                Lara Treinis Gatz, Peter A.
                             Norling, Assistant United States
                             Attorneys, for Loretta E. Lynch,
                             United States Attorney for the
                             Eastern District of New York,
                             Central Islip, New York.

FOR DEFENDANT-APPELLANT:     John S. Wallenstein, Law Office of
                             John S. Wallenstein, Garden City,
                             New York.

         Appeal from the United States District Court for the

Eastern District of New York (Feuerstein, J.).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

         Defendant-appellant Karon Deopersaud appeals from a

judgment of the United States District Court for the Eastern

District of New York (Feuerstein, J.), dated April 29, 2011,

convicting him, pursuant to a guilty plea, of conspiracy to

commit robbery and using a firearm during a crime of violence.

The district court sentenced Deopersaud to 117 months'

imprisonment, 5 years' supervised release, $60,000 in

restitution, and $200 in special assessments.    On appeal,

Deopersaud challenges only the restitution order.    Although he

did not specifically object to the restitution order below, he

objected to the loss amount of $60,000 set forth in the

presentence investigative report ("PSR"), and argues that the

district court did not rule on the objection as it was required



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to do under the Mandatory Victims Restitution Act ("MVRA"), 18

U.S.C. § 3664(e), and Rule 32(i)(3)(B) of the Federal Rules of

Criminal Procedure.   We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.

         "Ordinarily, we review a district court's order of

restitution under the MVRA for abuse of discretion . . . . [but

where] a defendant fails to object to the restitution order at

the time of sentencing, our review is for plain error."      United

States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).     We also

review for plain error where "the district court neglected to

address an objection to the PSR in violation of Rule

32(i)(3)(B), but [the] appellant failed to alert the district

court of this procedural issue."      United States v. Wagner-Dano,

679 F.3d 83, 90 (2d Cir. 2012).

         Section 3664(e) of the MVRA provides that "[a]ny

dispute as to the proper amount or type of restitution shall be

resolved by the court by the preponderance of the evidence."     18

U.S.C. § 3664(e); see also United States v. Oladimeji, 463 F.3d

152, 157 (2d Cir. 2006) (restitution order is based on factual

findings made by a judge by a preponderance of the evidence).         A

district court satisfies its obligation to make findings if it

adopts the recommendations in the PSR, Wagner-Dano, 679 F.3d at


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90, 94-95, but where any portion of the PSR is disputed, the

district court must "rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in

sentencing."    Fed. R. Crim. P. 32(i)(3)(B).

            Plain error exists where "(1) there is an error; (2)

the error is clear or obvious, rather than subject to reasonable

dispute; (3) the error affected the appellant's substantial

rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings."    United States v. Marcus, 130 S. Ct. 2159, 2164

(2010) (citations, alteration, and internal quotation marks

omitted).

            We conclude that plain error analysis applies here and

that there was no plain error.    First, it is unclear whether

Deopersaud preserved any objection to the restitution order.

While he objected, in his presentencing memorandum, to the

proposed loss amount of $60,000, he did not specifically object

to the proposed restitution order, either in his presentencing

memorandum or at sentencing.    Even assuming, however, that the

objection to the loss amount also served as an objection to the

restitution order, he failed to object on Rule 32(i)(3)(B)


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grounds when the district court at sentencing neglected to

address the objection.     See Wagner-Dano, 679 F.3d at 94.   Hence,

plain error review applies.

         Second, even assuming there was error, Deopersaud

cannot show that he suffered prejudice or that the error

seriously affected the fairness, integrity, or public reputation

of judicial proceedings.     The district court's restitution order

in the amount of $60,000 was supported by a finding in the PSR,

which in turn relied on an affidavit of loss given by the owner

of the jewelry store Deopersaud conspired to rob, which provided

that the store suffered a loss in the amount of $60,000.      See

United States v. Ben Zvi, 242 F.3d 89, 100 (2d Cir. 2001)

(district court does not abuse its discretion by relying on

victim's affidavit of loss in calculating the amount of

restitution).

         We have considered all of Deopersaud's remaining

arguments and conclude they are without merit.     Accordingly, the

judgment of the district court is AFFIRMED.

                           FOR THE COURT:
                           Catherine O'Hagan Wolfe, Clerk




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