18-3248
United States of America v. Jose Lopez

                           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 TO 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
1st day of July, two thousand nineteen.

Present:
            DENNIS JACOBS,
            DEBRA ANN LIVINGSTON,
            SUSAN L. CARNEY,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                          Appellee,

                 v.                                                 18-3248

JOSE LOPEZ,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                    BRUCE R. BRYAN, Esq., Syracuse, NY.

For Appellee:                               TIFFANY H. LEE, Assistant United States Attorney for
                                            James P. Kennedy, Jr., United States Attorney for the
                                            Western District of New York, Rochester, New York.

        Appeal from a judgment of the United States District Court for the Western District of New

York (Larimer, J.).
        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Jose Lopez (“Lopez”) appeals from a judgment of the United States

District Court for the Western District of New York (Larimer, J.) entered October 24, 2018

revoking Lopez’s supervised release upon finding that he had violated the conditions of that

release, and sentencing him to one year’s imprisonment. A district court may “revoke a term of

supervised release, and require the defendant to serve in prison all or part of the term of supervised

release authorized by statute for the offense that resulted in such term of supervised release . . ., if

the court . . . finds by a preponderance of the evidence that the defendant violated a condition of

supervised release.” 18 U.S.C. § 3583(e)(3). We review a district court’s finding of a violation of

supervised release for an abuse of discretion and its factual findings for clear error. See United

States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

                                           *       *       *

        Lopez first challenges the sufficiency of the evidence underlying the district court’s

determination that he violated the conditions of his supervised release. Following a revocation

hearing, the district court found that Lopez had refused to follow the rules and regulations of the

Volunteers of America Residential Reentry Center (“VOA-RRC”) at which he was to spend the

first 120 days of his term. After reviewing the record, we find that ample evidence supported the

district court’s conclusion on this issue. For example, VOA-RRC Director Maya Gourdine testified

at length as to Lopez’s refusal to participate in the VOA-RRC intake process, including offering

testimony regarding her conversation with Lopez in which he stated that Gourdine should “send

[him] to jail because [he was] not doing the halfway house,” and that he “was not going to give


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[the Bureau of Prisons (“BOP”)] or [the United States Probation Office (“USPO”)] any[ ]more of

his time . . . .” Appendix (“A.”) 80. As noted above, we accord considerable deference to a district

court’s findings of fact at a supervision violation hearing, including its findings as to witness

credibility, and we will reverse only for clear error. See United States v. Cawley, 48 F.3d 90, 93

(2d Cir. 1995). The district court did not clearly err in crediting Gourdine’s testimony, and finding

that Lopez’s testimony, in which he stated that he did not understand the intake process and had

no recollection of his conversation with Gourdine, strained credulity. See A. 106.

       Lopez also argues that the district court abused its discretion in admitting certain portions

of Gourdine’s testimony regarding her conversation with Lopez’s case worker. “Revocation

proceedings are not deemed part of a criminal prosecution, and, therefore, defendants in such

proceedings are not entitled to the full panoply of rights” enjoyed in a criminal trial. United States

v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012) (internal quotation marks omitted). Under Federal Rule

of Criminal Procedure 32.1(b)(2)(C), however, the defendant in a revocation proceeding does have

the right to “question any adverse witness unless the court determines that the interest of justice

does not require the witness to appear.” But we need not reach the issue as to whether some

portions of Gourdine’s testimony were inadmissible hearsay because there was ample additional

evidence beyond the contested pieces of testimony from which the district court could have

concluded that Lopez had violated the terms of his supervised release. Therefore, we conclude that

even if the district court erred in admitting some portions of Gourdine’s testimony, such error was

harmless.

       Next, Lopez claims that the district court’s chosen sentence of one year’s imprisonment

was substantively unreasonable in light of his schizophrenia. “In examining the substantive

reasonableness of a sentence, we review the length of the sentence imposed to determine whether


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it cannot be located within the range of permissible decisions.” United States v. Matta, 777 F.3d

116, 124 (2d Cir. 2015) (internal quotation marks omitted). We will “set aside a district court’s

substantive determination only in exceptional cases.” United States v. Cavera, 550 F.3d 180, 189

(2d Cir. 2008) (emphasis omitted). This is not such a case: the district court did not abuse its

discretion in imposing a sentence of twelve months’ imprisonment, following its prior decision to

sentence Lopez to time served (7 months) and his subsequent refusal to comply with the terms of

his supervised release. Moreover, to the extent that Lopez’s argument that the district court failed

to properly weigh his mental illness amounts to the claim that the district court committed error in

its relative consideration of the § 3553(a) factors (required to be taken into account during

sentencing), the particular “weight” to be given any of the “§ 3553(a) factors is a matter firmly

committed to the discretion of the sentencing judge and is beyond our review, as long as the

sentence ultimately imposed is reasonable in light of all the circumstances presented.” United

States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006), abrogated on other grounds by Rita v. United

States, 551 U.S. 338 (2007).

       Finally, we decline to consider Lopez’s ineffective assistance of counsel claim and his

claim that the district court abused its discretion in fashioning his original sentence for the prior

violation of the terms of his supervised release. This Court has made clear that

“a supervised release revocation proceeding is not the proper forum for a collateral attack on the

conviction or sentence that resulted in the term of supervised release.” United States v.

Warren, 335 F.3d 76, 77 (2d Cir. 2003) (emphasis added). Instead, the validity of the underlying

offense “may be challenged only on direct appeal or through a habeas corpus proceeding.” Id. at

78. Lopez therefore cannot use this appeal to challenge the validity of the sentence underlying the

supervised release revocation proceeding at issue here, although he can bring his ineffective


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assistance claim through a properly submitted habeas petition. We make no comment as to the

merits of that claim.

       We have considered Lopez’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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