Opinion
No. 09-5303-cr.
October 1, 2010.
Appeal from the United States District Court for the Southern District of New York (Koeltl, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Arza Feldman, Feldman Feldman, Uniondale, N.Y., for Defendant-Appellant.
Benjamin A. Naftalis, Katherine Polk Failla, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.
SUMMARY ORDER
Defendant-appellant Guadalupe De La Rosa appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Koeltl, J.), entered December 28, 2009, following his entry of a plea of guilty to one count of conspiring to distribute and possess with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846. On appeal, De La Rosa challenges his sentence of 228 months' imprisonment, to be followed by a term of 10 years' supervised release. On April 16, 2010, the government moved to dismiss De La Rosa's appeal based on De La Rosa's knowing and voluntary waiver of his appellate rights, and for summary affirmance. By order dated June 28, 2010, a panel of this Court granted the government's motion "to the extent [De La Rosa] seeks to appeal his term of imprisonment, because he has not demonstrated that the waiver of his appellate rights is unenforceable." See United States v. De La Rosa, No. 09-5303-cr (2d Cir. June 28, 2010) (Order granting motion to dismiss). The panel denied the motion, however, "with respect to [De La Rosa's] challenge to his term of supervised release (which does not fall within the scope of the appeal waiver)." Id. We assume the parties' familiarity with the remaining facts and procedural history of this case.
The sole question before us is whether the term of supervised release imposed by the district court was substantively reasonable. "Reasonableness review is akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion[,] . . . committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact." United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotation marks omitted). In reviewing the district court's determination for substantive reasonableness, we "take into account the totality of the circumstances, giving due deference to the sentencing judge's exercise of discretion, and bearing in mind the institutional advantages of district courts." United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). "Our role is no more than to `patrol the boundaries of reasonableness, United States v. Stewart, 590 F.3d 93, 135 (2d Cir. 2009) (quoting Cavera, 550 F.3d at 191), and we generally will set aside a district court's substantive determination only in exceptional cases where the court's decision "`cannot be located within the range of permissible decisions,'" Cavera, 550 F.3d at 189 (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
Here, De La Rosa argues that his 10-year term of supervised release is substantively unreasonable because (1) he will be 77 years old at the time of his release from prison, thus reducing the risk of recidivism; (2) the Probation Office recommended an 8-year term of supervised release; and (3) a 10-year term "is unjustified" given that De La Rosa's term of imprisonment "was unreasonably long." Def.'s Br. at 19. It is clear from the record of De La Rosa's sentencing hearing, however, that the district court carefully fashioned a sentence that "recognize[d] the seriousness of the offense and the need for deterrence," S.A. 67, while also taking into account De La Rosa's "age and physical condition," S.A. 70. Notably, the district court's decision to impose a 10-year term of supervised release was specifically predicated upon its decision to impose a term of imprisonment substantially below the bottom of the guidelines range. The district court's concerns regarding the likelihood of recidivism were reasonable in light of De La Rosa's considerable criminal history, and the court's sentence appropriately reflected the need for rehabilitation and protection of the public. Under these circumstances, we can conclude that the 10-year term supervised release — which was two years above the mandatory minimum term of 8 years but well below the maximum term of life — was substantively reasonable and well within the range of permissible decisions.
We have considered De La Rosa's remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.