United States v. Lajara

613 F. App'x 64

• Court: Court of Appeals for the Second Circuit
• Decided: August 24, 2015
• Docket: 14-1474-cr(L), 14-1503-cr(CON)
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant Raymond Anthony Resto appeals from a judgment entered in the District Court revoking his terms of supervised release after it found, following an evidentiary hearing, that Resto violated those terms by assaulting his girlfriend, Taisha Santiago, on two occasions, using a controlled substance, and attempting to bribe a federal employee to avoid a drug test. The District Court sentenced Resto principally to a term of 48 months’ imprisonment and a three-year term of supervised release.

On appeal, Resto contends that (1) the record fails to support the District Court’s finding that he assaulted Santiago and that he attempted to bribe the federal employee, and (2) the sentence imposed by the District Court was proeedurally and substantively unreasonable. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

DISCUSSION

I. Violations of Supervised Release

Violations of supervised release nee,d only be proven by a preponderance of the evidence. See United States v. Carthen, 681 F.3d 94, 99-100 (2d Cir.2012). We review a finding of a violation of supervised release for abuse of discretion. United States v. Barth, 899 F.2d 199, 202 (2d Cir.1990). A district court abuses its discretion if it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (internal citation and quotation marks omitted).

As noted above, Resto challenges the District Court’s findings as it relates to his alleged assaults of Santiago and his alleged attempted bribery of a federal employee. Both of these challenges fail. First, sufficient evidence existed for the District Court to find by a preponderance of the evidence that Resto assaulted Santiago on two separate occasions. With regard to the August 4, 2013 incident, the District Court acted well within its discretion in crediting the testimony of Santiago’s treat ing physician and concluding that Resto was the most likely cause of Santiago’s injuries. Similarly, with regard to the injuries Santiago sustained on September 14, 2013, the District Court did not err in crediting numerous witnesses, considering various exhibits, and concluding that it was more likely than not that Resto assaulted her a second time.

Resto’s argument that the District Court erred in concluding that he attempted to bribe a federal employee is also without merit. The evidence presented during the evidentiary hearing — including that Resto appeared surprised when asked to take a urine sample, that he took out his wallet and told the Laboratory Technician that he only had $200, and that he asked whether there were surveillance cameras in the room — was clearly sufficient for the District Court to conclude that Resto offered a federal employee a bribe.

II. Sentencing

We review sentences for violations of supervised release by asking the same question as in sentencing generally: “whether the sentence imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir.2005). Instead of looking to the formal Guidelines, however, judges are directed to consider the non-binding policy statements found in Chapter Seven of the Guidelines Manual when formulating sentencing ranges for violations of probation and supervised release. United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir.2008). The court ultimately has “broad discretion to ... impose a term of imprisonment” up to the statutory maximum. United States v. Sweeney, 90 F.3d 55, 57 (2d Cir.1996).

For the procedural reasonableness inquiry, we review under an abuse of discretion standard, Verkhoglyad, 516 F.3d at 127, by focusing on whether the sentencing court followed all the necessary steps in deciding upon a sentence, United States v. Park, 758 F.3d 193, 197 (2d Cir.2014). We review a sentence for substantive reasonableness also under an abuse of discretion standard. United States v. Rigas, 583 F.3d 108, 114-15- (2d Cir.2009). An appellate court 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.” United States v. Perez-Frias, 636 F.3d 39, 42 (2d Cir.2011) (internal quotation marks omitted). The length of a sentence is outside the range of permissible decisions when “affirming it would damage the administration of justice because the sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” Park, 758 F.3d at 200 (internal quotation marks omitted).

Upon review of the record, we identify no unreasonableness in Resto’s sentence. The District Court properly calculated the applicable Guidelines policy statement range, considered the relevant sentencing factors, and imposed a sentence that is within the range of permissible sentences. Indeed, the 48 month sentence — which is 12 months below the statutory maximum— cannot be said to “damage the administration of justice” where, as here, a defendant who was only recently released from prison was found to have assaulted his girlfriend on two occasions, attempted to bribe a federal employee, and used a controlled substance.

CONCLUSION

We have considered Resto’s remaining arguments and find them without merit. Accordingly, we AFFIRM the April 28, 2014 judgment of the District Court.