United States v. Fernandez-Rosa ( 2021 )

19-2529-cr
United States of America v. Fernandez-Rosa
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, 40 Foley Square, in the City of New York, on the
3rd day of June, two thousand twenty-one.
PRESENT: GUIDO CALABRESI,
WILLIAM J. NARDINI,
Circuit Judges,
GARY S. KATZMANN,
Judge.*
_______________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 19-2529
HECTOR EMILIO FERNANDEZ-ROSA,
Defendant-Appellant. †
_______________________________________
* Judge Gary S. Katzmann, of the United States Court of International Trade, sitting by
designation.
† The Clerk of Court is respectfully directed to amend the official caption as set forth above.
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
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).
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.
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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
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Fernandez-Rosa’s remaining arguments and conclude that they are without merit. For
the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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