     13-3796
     United States v. Ryder

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 17th day of March, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RAYMOND J. LOHIER, JR.,
 8                              Circuit Judges,
 9                LAURA TAYLOR SWAIN,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       United States of America,
14                Appellee,
15
16                    -v.-                                               13-3796
17
18       Jamaine Ryder,
19                Defendant-Appellant.**
20       - - - - - - - - - - - - - - - - - - - -X

                *
                  The Honorable Laura Taylor Swain, of the United
         States District Court for the Southern District of New York,
         sitting by designation.
                **
                  The Clerk of Court is respectfully directed to
         amend the official caption in this case to conform with the
         caption above.
                                                  1
 1   FOR APPELLANT:             STEPHEN LANCE CIMINO, Syracuse,
 2                              New York.
 3
 4   FOR APPELLEE:              SAMUEL HARBOURT, Bristow Fellow,
 5                              Office of the Solicitor General,
 6                              United States Department of
 7                              Justice, Washington, District of
 8                              Columbia.
 9
10                              Brenda K. Sannes & Richard R.
11                              Southwick, on the brief,
12                              Assistant United States
13                              Attorneys (for Richard S.
14                              Hartunian, United States
15                              Attorney for the Northern
16                              District of New York), Syracuse,
17                              New York.
18
19        Appeal from a judgment of the United States District
20   Court for the Northern District of New York (Suddaby, J.).
21
22        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
23   AND DECREED that the judgment of the district court be
24   AFFIRMED.
25
26        Jamaine Ryder appeals from the judgment of the United
27   States District Court for the Northern District of New York
28   (Suddaby, J.), sentencing him to concurrent terms of 57
29   months’ imprisonment on one count of bank fraud in violation
30   of 18 U.S.C. § 1344 and one count of conspiracy to commit
31   bank fraud in violation of 18 U.S.C. § 371. We assume the
32   parties’ familiarity with the underlying facts, the
33   procedural history, and the issues presented for review.
34
35        Ryder argues that his sentence is procedurally
36   unreasonable because the district court did not hold an
37   evidentiary hearing to resolve disputed facts relevant to
38   the calculation of his Sentencing Guidelines range. This
39   claim is reviewed only for an abuse of discretion. United
40   States v. Ghailani, 733 F.3d 29, 54-55 (2d Cir. 2013), cert.
41   denied, 134 S. Ct. 1523 (2014).
42
43        “[I]t is well established that a district court need
44   not hold an evidentiary hearing to resolve sentencing
45   disputes, as long as the defendant is afforded ‘some
46   opportunity to rebut the [g]overnment’s allegations.’” Id.
47   at 54 (quoting United States v. Broxmeyer, 699 F.3d 265, 280

                                  2
 1   (2d Cir. 2012)); accord United States v. Phillips, 431 F.3d
 2   86, 93 (2d Cir. 2005).
 3
 4        Ryder had several opportunities to challenge the
 5   government’s position on the two issues he cites in this
 6   appeal: the total loss amount of the check-cashing
 7   conspiracy for which Ryder could properly have been held
 8   responsible; and Ryder’s leadership role. Ryder proffered
 9   facts and arguments relating to these issues in his
10   objections to the Presentence Report, in his sentencing
11   memorandum, and in his counsel’s argument to the district
12   court at the sentencing hearing. Because Ryder had several
13   opportunities to make his arguments about loss amount and
14   his leadership role, the refusal to hold an evidentiary
15   hearing to resolve these issues was not an abuse of
16   discretion. Indeed, the Sentencing Guideline application
17   adopted by the district court was not inconsistent with the
18   defendant’s factual proffers.
19
20        For the first time in his reply brief, Ryder asserts
21   that the district court erred in failing to state in open
22   court, with specificity, its reasons for rejecting Ryder’s
23   sentencing arguments. We do not consider this argument,
24   because it was raised for the first time in Ryder’s reply
25   brief, depriving the government of an opportunity to
26   respond. Sherman v. Town of Chester, 752 F.3d 554, 568 n.4
27   (2d Cir. 2014).
28
29        For the foregoing reasons, and finding no merit in
30   Ryder’s other arguments, we hereby AFFIRM the judgment of
31   the district court.
32
33                              FOR THE COURT:
34                              CATHERINE O’HAGAN WOLFE, CLERK
35




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