12-4626-cr
United States v. Ruiz

                            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, at 40 Foley Square, in the City of New York, on
the 11th day of March, two thousand fourteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         JOSÉ A. CABRANES,
                     Circuit Judge,
         RICHARD M. BERMAN,
                     District Judge.*
________________________________________________

UNITED STATES OF AMERICA

                           Appellee,

                           v.                                    No. 12-4626-cr

JAVIER MOLINA, DANIEL SEMINARIO,

                           Defendants,

HERIBERTO RUIZ,

                     Defendant-Appellant.
________________________________________________

For Appellee:                     Jo Ann M. Navickas and Nathan D. Reilly, Assistant United
                                  States Attorneys, for Loretta E. Lynch, United States Attorney
                                  for the Eastern District of New York, Brooklyn, NY

       *
       The Honorable Richard M. Berman, United States District Judge for the Southern District of
New York, sitting by designation.
For Defendant-Appellant:            Nicholas J. Pinto, New York, NY


      Appeal from the United States District Court for the Eastern District of New York
(Cogan, J.).

        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Defendant-Appellant Heriberto Ruiz appeals from a November 15, 2012, judgment of

conviction and sentence imposed by the United States District Court for the Eastern District of

New York (Cogan, J.). The district court sentenced Ruiz principally to two concurrent terms of

fifteen years’ imprisonment after he pleaded guilty to both counts of a two-count indictment

charging him with engaging in a conspiracy to possess with intent to distribute one kilogram or

more of heroin and attempting to possess with intent to distribute one kilogram or more of

heroin, both in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(i). On appeal, he contends that

his sentence was procedurally and substantively unreasonable. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal.

        We review criminal sentences for both procedural and substantive reasonableness “under

a ‘deferential abuse-of-discretion standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). “A district court

commits procedural error where it fails to calculate the Guidelines range . . . , makes a mistake in

its Guidelines calculation, . . . treats the Guidelines as mandatory[,] . . . does not consider the [18

U.S.C.] § 3553(a) factors, . . . rests its sentence on a clearly erroneous finding of fact[,] . . . [or]

fails adequately to explain its chosen sentence . . . .” Id. at 190 (citations omitted). Because Ruiz

failed to preserve his claim of procedural unreasonableness below, we review his claim only for

plain error. See United States v. Alvarado, 720 F.3d 153, 157 (2d Cir. 2013) (per curiam).

                                                    2
       “The length of the sentence imposed is what is examined on substantive review.” United

States v. Bonilla, 618 F.3d 102, 108–09 (2d Cir. 2010). However, “we will not substitute our

own judgment for the district court’s on the question of what is sufficient to meet the [18 U.S.C.]

§ 3553(a) considerations in any particular case”; rather, 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.” Cavera, 550 F.3d at 189 (emphasis and

internal quotation marks omitted).

       On appeal, Ruiz argues that one cannot reconcile the sentence imposed—which is five

years longer than the statutory, ten-year mandatory minimum—with the district court’s

expressed concern that this high mandatory minimum prevented it from fully considering Ruiz’s

relationship with his family as a mitigating circumstance. Ruiz contends that the district court’s

failure to provide an explanation for this inconsistency is procedurally unreasonable, and its

decision to impose a sentence above the mandatory minimum is substantively unreasonable

because it cannot be rationally justified given the district court’s comments.

       Ruiz mischaracterizes the district court’s concerns. At sentencing, the district court

acknowledged that “because the statutory minimum is so high, . . . there is nothing I can do that

will allow him to help raise his children or demonstrate a fatherly role towards them.” J.A. 46.

However, the district court made this comment in the context of explaining that it would not give

this mitigating factor too much weight in light of Ruiz’s inevitably long sentence, not in the

context of expressing a desire to impose a lesser sentence. Moreover, in its discussion of the

§ 3553(a) factors, the district court also commented on the seriousness of the offenses to which

Ruiz pleaded guilty, the significance of his role in providing substantial funds for the proposed


                                                  3
transaction, and the fact that Ruiz qualified as a career offender. Given this discussion, the

district court engaged in sufficient consideration of the § 3553(a) factors in general, and Ruiz’s

personal circumstances in particular, to satisfy plain error review. See United States v. Legros,

529 F.3d 470, 477–78 (2d Cir. 2008).

       Ruiz’s sentence was also substantively reasonable. The 180-month sentence is 82 months

below the bottom end of the advisory Guidelines range, and 60 months above the mandatory

minimum. The district court’s balancing of Ruiz’s personal circumstances, his role in a serious

offense, and his significant criminal record was reasonable in this case and did not result in a

sentence that 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).

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

the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




                                                  4
