Opinion
19-2529
06-03-2021
UNITED STATES OF AMERICA, Appellee, v. HECTOR EMILIO FERNANDEZ-ROSA, Defendant-Appellant. [†]
FOR APPELLEE: Emil J. Bove III (Matthew LaRoche and Karl Metzner, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY FOR DEFENDANT-APPELLANT: Alessandra DeBlasio, Esq., New York, NY
UNPUBLISHED OPINION
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 3rd day of June, two thousand twenty-one.
On appeal from the United States District Court for the Southern District of New York (Richard J. Sullivan, United States Circuit Judge for the Second Circuit, sitting by designation).
FOR APPELLEE: Emil J. Bove III (Matthew LaRoche and Karl Metzner, on the brief), Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY
FOR DEFENDANT-APPELLANT: Alessandra DeBlasio, Esq., New York, NY
PRESENT: GUIDO CALABRESI, WILLIAM J. NARDINI, Circuit Judges, GARYS. KATZMANN, Judge. [*]
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court entered on August 5, 2019, is AFFIRMED.
Defendant-Appellant Hector Emilio Fernandez-Rosa appeals from a judgment of conviction and sentence imposed on August 2, 2019, following his guilty plea to one charge of conspiracy to distribute and possess cocaine, in violation of 21 U.S.C. § 846. He was sentenced principally to a term of life in prison. On direct appeal, Fernandez-Rosa challenges the sentencing proceedings before the district court, including the procedural and substantive reasonableness of his sentence. We assume the reader's familiarity with the case.
In reviewing Fernandez-Rosa's sentencing challenges, "we apply 'a particularly deferential form of abuse-of-discretion review,' and will not vacate a sentence unless it is either procedurally or substantively unreasonable." United States v. Clarke, 979 F.3d 82, 99 (2d Cir. 2020) (quoting United States v. Cavera, 550 F.3d 180, 188 n.5 (2d Cir. 2008) (en banc)). A district court commits "procedural error" if it improperly calculates the Sentencing Guidelines range, fails to consider the sentencing factors set forth in 18 U.S.C. § 3553(a), bases its sentence on a clearly erroneous finding of fact, or fails to adequately explain the chosen sentence. Id. (citing Cavera, 550 F.3d at 190). A sentence is substantively unreasonable if it is "shockingly high, shockingly low, or otherwise unsupportable as a matter of law." United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)); see also Cavera, 550 F.3d at 189 (explaining that a sentence is substantively unreasonable when it "cannot be located within the range of permissible decisions" (quoting Rigas, 490 F.3d at 238)).
Applying these standards, we have thoroughly reviewed the record on appeal and conclude that Fernandez-Rosa's sentence is both procedurally and substantively reasonable. We further find no merit in Fernandez-Rosa's claim of misconduct, bad faith or otherwise, on the part of the Government at sentencing. We have considered Fernandez-Rosa's remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. [*]Judge Gary S. Katzmann, of the United States Court of International Trade, sitting by designation.