09-2909-cr
U .S. v. D eJesus

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY 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. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 United States Courthouse, 500 Pearl Street, in the City of New
York, on the 24 th day of September, two thousand ten.

PRESENT:         JON O. NEWMAN,
                 REENA RAGGI,
                                 Circuit Judges,
                 JED S. RAKOFF,
                                 District Judge.*
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UNITED STATES OF AMERICA,
                                          Appellee,
                  v.                                                   No. 09-2909-cr

FELIX DeJESUS,
                                          Defendant-Appellant.
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APPEARING FOR APPELLANT:                          DAN E. LaBELLE, Halloran & Sage LLP,
                                                  Westport, Connecticut.

APPEARING FOR APPELLEE:                           JAMES R. SMART, Assistant United States
                                                  Attorney (Michael J. Gustafson, Assistant United
                                                  States Attorney, on the brief), for David B. Fein,
                                                  United States Attorney for the District of
                                                  Connecticut, New Haven, Connecticut.


            *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
       Appeal from the United States District Court for the District of Connecticut (Stefan

R. Underhill, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 6, 2009, is AFFIRMED.

       Defendant Felix DeJesus, who was convicted following a jury trial of one count of

conspiracy to possess with intent to distribute 1,000 grams or more of heroin and one count

of conspiracy to possess with intent to distribute fifty grams or more of crack cocaine, see

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, challenges the substantive reasonableness of his

300-month sentence, imposed after remand from this court pursuant to United States v.

Regalado, 518 F.3d 143 (2d Cir. 2008). See United States v. Rosario, 280 F. App’x 78, 80

(2d Cir. 2008) (instructing district court to consider whether it would have imposed non-

Guidelines sentence in light of discretion to deviate from crack cocaine Guideline and

inviting consideration of disparity in sentences imposed on DeJesus and his brother). We

review the reasonableness of a sentence for abuse of discretion and 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.” United States v. Cavera, 550

F.3d 180, 189 (2d Cir. 2008) (en banc) (emphasis in original) (internal quotation marks

omitted); United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007). In undertaking this

review, we assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.


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       DeJesus submits that his sentence is substantively unreasonable because it is greater

than necessary to achieve the goals of sentencing and fails adequately to account for his

disadvantaged youth, the brevity of his previous terms of incarceration, and his steps toward

rehabilitation. We are not persuaded.

       The challenged 300-month sentence reflects a five-year reduction from the thirty-year

prison term originally imposed. That reduction was made in consideration of DeJesus’s

claim that the original thirty-year term sentenced him to twenty months more imprisonment

than his brother, whose criminal history category and offense level were higher and who also

played a significant a role in the charged conspiracy. See United States v. Rosario, 280 F.

App’x at 80.1 The district court plainly considered and credited DeJesus’s rehabilitation

efforts when, at the original sentencing, it cited this ground to support a downward departure

from offense level 43 to 42. As for the remaining mitigating factors, the district court

considered them outweighed by the defendant’s long criminal record, history of violence, and

supervisory role in what the district court described as “one of the worst drug conspiracies”

to have operated in the Bridgeport area. Sent’g Tr. at 72; United States v. DeJesus, No. 00

Cr. 227 (D. Conn. Apr. 30, 2007) (Ruling and Order Regarding Crosby Remand, at 2). This

assessment was informed by insight gained from three trials pertaining to the charged

       1
         As noted, the remand order also instructed the district court to consider, pursuant to
United States v. Regalado, whether it would have imposed the same sentence in light of its
discretion to deviate from the crack cocaine Guideline. The district court declined to adjust
the sentence on this basis in light of the substantial amounts of heroin involved in the crime
of conviction. DeJesus does not challenge this aspect of the district court’s sentencing
determination.

                                              3
conspiracy and the imposition of dozens of sentences on members of the criminal scheme.

In these circumstances, we conclude that the district court acted well within its discretion in

imposing the challenged sentence, see Gall v. United States, 552 U.S. 38, 51-52 (2007)

(discussing institutional advantages of district court); accord United States v. Jones, 531 F.3d

163, 170-71 (2d Cir. 2008), and we reject the claim of substantive unreasonableness as

without merit, see United States v. Cavera, 550 F.3d at 189.

       We have considered DeJesus’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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