14-1761-cr (L), 14-3334(con)
United States v. Rosa & Mercado

                                  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 22nd day of November, two thousand sixteen.

PRESENT:           JOSÉ A. CABRANES,
                   ROSEMARY S. POOLER,
                   BARRINGTON D. PARKER,
                                Circuit Judges.


UNITED STATES OF AMERICA,

                            Appellee,                       14-1761-cr (L), 14-3334(con)

                            v.

ANGEL ROSA, AKA LITTLE, AKA DADDY, JERRY
MERCADO,

                            Defendants-Appellants.


FOR APPELLEE:                                            NANCY V. GIFFORD (Sandra S. Glover, on
                                                         the brief), Assistant United States
                                                         Attorneys, for Deirdre M. Daly, United
                                                         States Attorney for the District of
                                                         Connecticut, New Haven, CT.

FOR DEFENDANT-APPELLANT ANGEL                            JOHN A. CIRANDO, (Bradley E. Keem,
ROSA:                                                    Elizabeth deV. Moeller, on the brief), D.J. &
                                                         J.A. Cirando, Esqs., Syracuse, NY.


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FOR DEFENDANT-APPELLANT JERRY                              WALTER BANSLEY III (Heather Clark,
MERCADO:                                                   Clark Law Office, New London, CT, on
                                                           the brief), New Haven, CT.

       Appeal from judgments of the United States District Court for the District of Connecticut
(Michael P. Shea, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the District Court be and are hereby
AFFIRMED.

         Defendants-appellants Angel Rosa (“Rosa”) and Jerry Mercado (“Mercado”) appeal from
judgments of conviction entered on May 28, 2014 and August 25, 2014, respectively. Rosa pleaded
guilty to conspiracy to possess with intent to distribute and distribution of 100 grams or more of a
mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B). Mercado pleaded guilty to conspiracy to possess with intent to distribute
and distribution of a mixture and substance containing a detectable quantity of heroin, in violation
of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). The District Court imposed a 235-month term of
imprisonment on Rosa and a 120-month term of imprisonment on Mercado. This appeal followed.

         On appeal, Rosa asserts that (1) he received ineffective assistance of counsel because of a
breakdown in communication between him and his lawyer; (2) that the District Court abused its
discretion by not ordering a mental competency hearing; and (3) that his sentence was substantively
unreasonable. Mercado argues only that his sentence was substantively unreasonable. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal. For the reasons set forth below, each of these arguments are unavailing.

                                                   A.

        Rosa first argues that his conviction is constitutionally defective because he suffered
ineffective assistance of counsel. We evaluate ineffective assistance claims pursuant to the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), in which a petitioner must (1)
show that his counsel’s representation “fell below an objective standard of reasonableness” and (2)
“affirmatively prove prejudice.” Id. at 687-88, 693. Unlike a claim brought pursuant to a 28 U.S.C.
§ 2255 motion, the factual record on direct appeal typically has not been developed “precisely for
the object of litigating or preserving the claim and [is] thus often incomplete or inadequate for this
purpose.” Massaro v. United States, 538 U.S. 500, 505 (2003). Because we have a “baseline aversion to
resolving ineffectiveness claims on direct review,” United States v. Salameh, 152 F.3d 88, 161 (2d Cir.
1998), and because the Supreme Court has explained that “in most cases a motion brought under
§ 2255 is preferable to direct appeal for deciding claims of ineffective assistance,” Massaro, 538 U.S.
at 504, we decline to review Rosa’s ineffective assistance claim at this time. Instead, Rosa may pursue
his claim in a § 2255 petition.

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                                                     B.

       Rosa next argues that the District Court erred or “abused its discretion” by not ordering a
mental competency hearing. While Rosa filed an ex parte motion seeking permission to incur
expenses under the Criminal Justice Act, 18 U.S.C. § 3006A, for a psychological examination after he
pleaded guilty, he did not move for a competency hearing.1

         “It is well established that the Due Process Clause . . . prohibits the criminal prosecution of a
defendant who is not competent to stand trial.” Medina v. California, 505 U.S. 437, 439 (1992). This
due process right “spans the duration of a criminal proceeding,” including sentencing. United States v.
Arenburg, 605 F.3d 164, 168–69 (2d Cir. 2010). Section 4241(a) of Title 18, United States Code,
requires a district court, on its own motion, to conduct a competency hearing “if there is reasonable
cause to believe that the defendant may presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly in his defense.” 18 U.S.C.
§ 4241(a). We review for abuse of discretion the district court’s determination that such “reasonable
cause” warranting a competency hearing is absent. Arenburg, 605 F.3d at 169. “A district court has
abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or rendered a decision that cannot be located within the range of
permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks,
alteration, and citations omitted); see also In re City of New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010)
(explaining that “abuse of discretion” is a nonpejorative “term of art”).

        Upon review of the record and relevant law, we conclude that the District Court acted well
within its discretion to not hold a competency hearing sua sponte. At Rosa’s plea allocution, the
District Court explicitly inquired into Rosa’s health and mental competency. The District Court
further inquired of defense counsel whether he had “any doubts at this time as to [Rosa’s]
competence to plead guilty,” to which counsel responded “No.” J.A. 395. Moreover, Rosa’s conduct
during his plea and sentencing hearings not only indicates that he actively participated in the
proceedings, but that he clearly understood their nature. For example, at his sentencing hearing,
Rosa clarified issues concerning his gang membership and forfeiture provisions in the plea
agreement. On this record, it is abundantly clear that the District Court was well within its discretion
not to hold a competency hearing sua sponte. See Arenburg, 605 F.3d at 169.




    1
      The District Court denied this motion without prejudice to renewal if Rosa could provide
mental health records and an affidavit from defense counsel supporting Rosa’s claim of mental
illness. Rosa never supplied this documentation, which lends further support to the District Court’s
choice not to hold a sua sponte competency hearing.

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                                                    C.

        Lastly, both Rosa and Mercado argue that their sentences are substantively unreasonable. We
review a district court’s sentence under a “deferential abuse-of-discretion standard.” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted). In reviewing
claims of substantive unreasonableness, we consider “the totality of the circumstances, giving due
deference to the sentencing judge’s exercise of discretion,” and we “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 189–90 (internal quotation marks omitted)
(emphasis in original). Further, although we do not presume that a Guidelines sentence is
reasonable, in the “overwhelming majority of cases,” it is. United States v. Rodriguez, 715 F.3d 451, 451
(2d Cir. 2013) (internal quotation marks omitted).

        On the record before us, we conclude that Rosa’s sentence of 235 months of imprisonment
is not substantively unreasonable. The District Court calculated a sentencing range of 188–235
months in accordance with Rosa’s plea agreement and the applicable Guidelines. The District Court
imposed a sentence at the top of the Guidelines range and articulated the precise reasons for the
sentence, including, inter alia, Rosa’s role as the leader of the conspiracy and his long and violent
criminal background. Based on the foregoing, we conclude that the sentence imposed on Rosa by
the District Court was not substantively unreasonable.

       Similarly, we conclude that Mercado’s sentence of 120 months of imprisonment is not
substantively unreasonable. The District Court employed a careful analysis of the factors set forth in
18 U.S.C. § 3553(a) and, noting its discretion to depart from the Guidelines, imposed a below-
Guidelines sentence. The District Court also reviewed Mercado’s record to confirm his violent
criminal history (giving full consideration to Mercado’s young age when some of these crimes were
committed) and appropriately concluded that this criminal history and the purposes of sentencing
precluded a further downward departure from the Guidelines. Under these circumstances, the
sentence imposed on Mercado by the District Court was not substantively unreasonable.

                                           CONCLUSION

        We have reviewed all of the arguments raised by Rosa and Mercado on appeal and find them
to be without merit. We thus AFFIRM the May 28, 2014 and August 25, 2014 judgments of the
District Court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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