09-5066-cr
USA 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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th day
of March, two thousand eleven.

Present:
         ROBERT A. KATZMANN,
         REENA RAGGI,
         RAYMOND J. LOHIER, JR.,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 09-5066-cr

LUIS ROJAS, also known as El Gordo,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                 Mary Anne Wirth, Bleakley Platt & Schmidt, LLP,
                                         White Plains, N.Y.

For Appellee:                            Daniel C. Richenthal, Assistant United States Attorney
                                         (Jesse M. Furman, Assistant United States Attorney, of
                                         counsel), for Preet Bharara, United States Attorney for
                                         the Southern District of New York, New York, N.Y.
       Appeal from the United States District Court for the Southern District of New York

(Keenan, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

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

       Defendant-Appellant Luis Rojas appeals from a December 1, 2009 amended judgment of

conviction entered by the United States District Court for the Southern District of New York

(Keenan, J.). We assume the parties’ familiarity with the facts and procedural history of this

case, which we reference only to the extent necessary to explain our decision.

       On March 26, 2002, Rojas pleaded guilty to conspiracy to distribute and possess with

intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 846.

Following a Fatico hearing, the district court (the late Judge Schwartz then presiding) sentenced

Rojas principally to 360 months’ imprisonment in January 2003. Rojas then appealed from his

conviction and sentence. This court affirmed the conviction by summary order, United States v.

Rojas, 102 F. App’x 740 (2d Cir. 2004), and by order dated February 4, 2005, permitted Rojas to

seek resentencing in light of the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), and this court’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), by

completing a form. Having received no response to the order, this court’s mandate issued on

March 11, 2005. In October 2008, Rojas moved for substitution of counsel, to recall the

mandate, and to remand for resentencing. The government did not oppose those motions, which

this court then granted. On remand, the case was reassigned to Judge Keenan, who by order




                                                 2
issued on August 13, 2009,1 vacated Rojas’s original sentence and held that Rojas was entitled to

de novo resentencing pursuant to United States v. Fagans, 406 F.3d 138, 141 (2d Cir. 2005),

because he had preserved his claim of Sixth Amendment error. On December 1, 2009, Judge

Keenan resentenced Rojas principally to 360 months’ imprisonment. In this appeal, Rojas

challenges the procedural and substantive reasonableness of that sentence.

       We first address Rojas’s challenges to the procedural reasonableness of his sentence.

“We review the reasonableness of a district court’s sentence under a deferential abuse of

discretion standard.” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir. 2010). Where, as

here, our previous mandate required that the district court resentence the defendant de novo, the

district court must resentence the defendant “in light of the circumstances as they stand at the

time of his resentencing.” Id. at 54 (quoting Werber v. United States, 149 F.3d 172, 178 (2d Cir.

1998)) (alteration and internal quotation mark omitted). A district court commits procedural

error where it, inter alia, fails to consider the sentencing factors set forth in 18 U.S.C. § 3553(a).

United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Rojas contends that the

district court erred by failing to take into account new evidence and changed circumstances,

including Rojas’s rehabilitation, age, health problems, financial resources, and family situation.

       As a general matter, “we presume, in the absence of record evidence suggesting

otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory

factors.” United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). “[N]o ‘robotic

incantations’ are required to prove the fact of consideration, and we will not conclude that a



       1
        As the district court noted, due to a typographical error, the date printed on this order
reads “August 13, 2008.” App. 362.

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district judge shirked her obligation to consider the § 3553(a) factors simply because she did not

discuss each one individually or did not expressly parse or address every argument relating to

those factors that the defendant advanced.” Id. (citations and footnote omitted). Rojas does not

dispute that Judge Keenan stated on the record that he had reviewed all the parties’ submissions

and had considered the sentencing factors set forth in § 3553(a). Nevertheless, he asserts that we

should not apply our presumption that the sentencing judge faithfully discharged his duties.

       In this regard, Rojas relies on our holding in United States v. Hernandez, 604 F.3d 48,

where we vacated the district court’s reimposition of an identical 405-month term of

imprisonment on remand because the record indicated that the court failed to consider the

§ 3553(a) factors — most notably, “evidence of rehabilitation and other mitigating evidence” —

despite the court’s assertion that it had reviewed the parties’ submissions and assessed the

statutory factors, id. at 52, 55. Hernandez, however, is distinguishable from the instant case.

We did not vacate the sentence in Hernandez merely because the district court, without

elaborating on each of the statutory factors, imposed an identical term of imprisonment when

considerable time had elapsed since the original sentencing. Rather, in Hernandez, the record

clearly indicated that the district court did not properly consider the defendant’s rehabilitation.

The district court in Hernandez “misconstrued the scope of re-sentencing” by assuming that the

only relevant issue on resentencing was the need for factual findings supporting a four-level role

enhancement under the United States Sentencing Guidelines (the “Guidelines”), which was the

defect that led to the vacatur of the initial sentence. Id. at 52, 54. This understanding was in

error. The defendant in Hernandez was initially sentenced in 1991, and we concluded that “the

law of sentencing substantially evolved, and [the defendant] may have undergone a remarkable


                                                  4
rehabilitation” during the “fifteen-year hiatus” between the original vacatur of the sentence and

the resentencing, thus necessitating a de novo resentencing. Id. at 54. Therefore, we vacated the

sentence, notwithstanding the district court’s statement that it had considered the statutory

factors, because it was apparent from the record that the district court incorrectly understood the

scope of its resentencing authority to be limited.

       Here, by contrast, the record makes plain that the district court understood that it was to

resentence Rojas de novo. In his August 13, 2009 order, Judge Keenan expressly held that Rojas

was entitled to de novo resentencing because he had preserved his objection to the compulsory

application of the Guidelines. This order also directed the Probation Department to prepare an

updated Presentence Report (“PSR”) and granted Rojas permission to be interviewed by a

“sentencing advocacy and mitigation firm.” App. 310-11. Defense counsel’s written

submissions and arguments at the resentencing hearing focused on the changes in Rojas’s

circumstances since the initial sentencing, and in his colloquies with counsel during that hearing,

Judge Keenan specifically referenced the new information that was provided regarding Rojas’s

finances and family circumstances. Judge Keenan also deviated from Judge Schwartz’s sentence

in certain respects by declining to impose a fine due to Rojas’s inability to pay and by

recommending that Rojas be designated to serve his sentence in a facility near New York.2

These aspects of the record, in conjunction with Judge Keenan’s statements that he had reviewed

all of the parties’ sentencing submissions and considered the statutory factors, provide no basis



       2
          While the elimination of a previously imposed fine does not by itself establish that a
district court understands its authority to resentence de novo, cf. Hernandez, 604 F.3d at 52
(noting that the district court, on consent, reduced the amount of the fine initially imposed), it at
least suggests that the district court was operating with that understanding.

                                                  5
to rebut the presumption that Judge Keenan in fact considered Rojas’s arguments and the

statutory factors in connection with the de novo resentencing. Therefore, we detect no

procedural error in the fact that Judge Keenan did not “expressly parse or address every

argument relating to those factors that the defendant advanced.” Fernandez, 443 F.3d at 30.

       Rojas also contends that Judge Keenan procedurally erred by relying excessively on

Judge Schwartz’s prior factual findings and sentence, and by discussing at length his

professional association with and esteem for Judge Schwartz. We are not convinced that Judge

Keenan impermissibly treated Judge Schwartz’s findings and sentence as a “baseline.” While

Judge Keenan referred to and adopted Judge Schwartz’s findings that Rojas distributed

approximately 2,900 kilograms of cocaine, managed or supervised a cocaine distribution

conspiracy involving five or more participants, and possessed a firearm in connection with this

activity, it does not follow from his agreement with these findings that Judge Keenan

erroneously believed that he was not free to revisit them. Given Judge Keenan’s manifest

understanding that he was not bound by previous sentencing determinations in the case, his

statements of agreement with Judge Schwartz do not, without more, amount to procedural error,

especially where Rojas does not challenge on appeal the validity of the underlying findings.

       Similarly, while professional regard for a late colleague does not provide a substitute for

the resentencing court’s exercise of its discretion anew, neither is there anything inherently

suspicious about two district judges coming to the same conclusions following their respective

evaluations of the appropriate record. Based on our careful review of the record here, we see no

reason to infer from Judge Keenan’s expressions of praise for Judge Schwartz during the




                                                 6
resentencing hearing that Judge Keenan neglected his responsibility to conduct his own

independent assessment of Rojas as he stood before the resentencing court.

         Finally, Rojas challenges the substantive reasonableness of his sentence, though it is

unclear to what extent his substantive disagreements with the term imposed are independent of

the procedural objections noted above. In any event, “[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.” Cavera, 550 F.3d at 189 (emphasis and

internal quotation marks omitted). While we have declined to adopt a presumption that

sentences within the Guidelines range are reasonable, “[w]e recognize that in the overwhelming

majority of cases, a Guidelines sentence will fall comfortably within the broad range of

sentences that would be reasonable in the particular circumstances.” Fernandez, 443 F.3d at 27.

Here, the district court found that Rojas was responsible for distributing approximately three tons

of cocaine, that he played a managerial role in the conspiracy, and that his narcotics crimes

involved the use of a firearm. Given these characteristics of the offense, we do not think that the

district court’s imposition of a 360-month sentence, which was near the midpoint of the

Guidelines range of 324 to 405 months’ imprisonment, was “shockingly high, shockingly low, or

otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.

2009).

         Because we conclude that the sentence imposed was procedurally and substantively

reasonable, we do not reach Rojas’s request that the case be assigned to a different district judge

on remand. We have considered Rojas’s remaining arguments and find them to be without




                                                  7
merit.3 Accordingly, for the foregoing reasons, the amended judgment of the district court is

AFFIRMED.

                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, CLERK




        3
         Insofar as Rojas contends for the first time in his reply brief that the district court failed
to comply with its responsibility pursuant to 18 U.S.C. § 3553(c) to “state in open court the
reasons for its imposition of the particular sentence,” we do not reach that challenge. Absent
manifest injustice, “arguments not made in an appellant’s opening brief are waived even if the
appellant . . . raised them in a reply brief.” JP Morgan Chase Bank v. Altos Hornos de Mexico,
S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005). We see no reason to excuse Rojas’s waiver in
the circumstances of this case.

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