         09-3003-cr
         United States v. Cuevas


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 22 nd day of July, two thousand and                                    ten.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                PETER W. HALL,
 8                         Circuit Judges,
 9                RICHARD W. GOLDBERG,
10                         Judge. *
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-3003-cr
18
19       ALEJANDRO BORDE and JESENIA HERNANDEZ,
20
21                                       Defendants,
22
23       JUAN CUEVAS,
24
25                                       Defendant-Appellant.
26
27
28



                 *
                 The Honorable Richard W. Goldberg, United States Court of
         International Trade, sitting by designation.
 1   FOR APPELLANT:              DONNA R. NEWMAN, New York, NY.
 2
 3   FOR APPELLEE:               JOCELYN E. STRAUBER, Assistant
 4                               United States Attorney (Michael
 5                               S. Bosworth, Assistant United
 6                               States Attorney, on the brief),
 7                               for Preet Bharara, United States
 8                               Attorney for the Southern
 9                               District of New York, New York,
10                               NY.
11
12        Appeal from the United States District Court for the
13   Southern District of New York (Batts, J.).
14
15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16   AND DECREED that the judgment of the district court is

17   AFFIRMED.

18       Appellant Juan Cuevas appeals from the district court’s

19   June 29, 2009 judgment of conviction entered following his

20   March 30, 2008 guilty plea to one count of conspiring to

21   distribute and possess with intent to distribute five or

22   more kilograms of cocaine, in violation of 21 U.S.C. § 846.

23   The district court sentenced appellant principally to 151

24   months’ imprisonment.   We assume the parties’ familiarity

25   with the underlying facts, the procedural history, and the

26   issues presented for review.

27       In this appeal, appellant argues that his sentence was

28   marred by procedural error because the district court:     (1)

29   did not describe on the record the factual findings


                                    2
1    underlying its calculation of the applicable sentencing

2    range from the U.S. Sentencing Guidelines (the

3    “Guidelines”); (2) relied on hearsay and other evidence that

4    was insufficient to sustain the findings upon which the

5    Guidelines calculation was based; and (3) failed to consider

6    all of the sentencing factors set forth at 18 U.S.C. §

7    3553(a).     We consider these procedural arguments under a

8    deferential abuse-of-discretion standard; the touchstone of

9    our review is reasonableness.       See United States v. Cavera,

10   550 F.3d 180, 189-90 (2d Cir. 2008) (en banc).

11       Appellant first argues that the district court

12   committed procedural error by failing to make fact findings

13   on the record relating to the three-level role enhancement

14   that it imposed, see U.S.S.G. § 3B1.1(b), as well as the

15   applicable drug quantity under the Guidelines.       Because

16   appellant did not raise these objections at the sentencing,

17   we review his contentions for plain error.       See United

18   States v. Espinoza, 514 F.3d 209, 211-12 (2d Cir. 2008).

19   The district court stated at the sentencing that it

20   “accept[ed] and adopt[ed] the factual recitations set forth

21   in the presentence report, including the quantity of drugs

22   in issue.”     With respect to appellant’s role, the district


                                     3
1    court rejected the Probation Department’s four-level

2    recommendation and instead imposed a three-level

3    enhancement.     The court explained that it “agree[d] with the

4    government that Mr. Cuevas was a supervisor of Ms.

5    Hernandez,” but that “a three-level increase as opposed to a

6    four-level increase would more closely approximate

7    [appellant’s] role in this matter.”     The district court

8    committed no error — plain or otherwise — by adopting and

9    relying upon the presentence report (“PSR”) as the basis for

10   these factual findings.     See id. at 212.

11       Appellant next argues that the factual findings in the

12   PSR were insufficient to support the district court’s

13   Guidelines calculation by a preponderance of the evidence.

14   “The sentencing court’s discretion is largely unlimited

15   either as to the kind of information it may consider, or the

16   source from which it may come,” and the court “is free to

17   consider hearsay evidence . . . in determining [a]

18   sentence.”     United States v. Gomez, 580 F.3d 94, 105 (2d

19   Cir. 2009) (internal quotation marks omitted).     Having

20   reviewed the PSR, as well as the other documents that were

21   before the district court at appellant’s sentencing, we find

22   that these materials were sufficient to sustain the district


                                     4
1    court’s conclusions regarding the applicable role

2    enhancement and drug quantity.

3        Consistent with that conclusion, we hold that the

4    district court did not err by failing to conduct a hearing

5    to determine the precise drug quantity that was to be

6    considered under the Guidelines.    Although appellant’s

7    counsel objected to the Probation Department’s drug-quantity

8    finding in his July 23, 2008 sentencing submission, he did

9    not raise this issue at the subsequent sentencing proceeding

10   on June 15, 2009.   His failure to do so was consistent with

11   the fact that, at an intervening safety valve proffer with

12   the government, appellant admitted that he had sold between

13   30 and 40 kilograms of cocaine.    The government provided

14   this information to the district court in its November 12,

15   2008 sentencing submission, and appellant did not contest

16   the veracity of that representation in the district court or

17   this appeal.   Therefore, the district court was entitled to

18   rely on defendant’s statements during the safety valve

19   proffer as confirmation of the finding in the PSR that the

20   quantity of cocaine involved was somewhere between 15 and 50

21   kilograms.

22       Finally, appellant argues that the district court



                                   5
1    failed to give adequate consideration to the sentencing

2    factors listed in 18 U.S.C. § 3553(a).     This contention runs

3    headlong into United States v. Fernandez, 443 F.3d 19 (2d

4    Cir. 2006), in which we held that we will “presume, in the

5    absence of record evidence suggesting otherwise, that a

6    sentencing judge has faithfully discharged her duty to

7    consider the statutory factors.”     Id. at 29.   Simply put,

8    there is no indication in the record that the district

9    court’s consideration of the § 3553(a) factors was

10   insufficient.

11       We have considered each of appellant’s arguments and

12   find them to be without merit.     Accordingly, the judgment of

13   the district court is hereby AFFIRMED.

14
15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17
18
19




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