United States v. Rodriguez-Jimenez

• Court: Court of Appeals for the Second Circuit
• Decided: May 18, 2020
• Docket: 18-2521-cr
• Status: Unpublished

Opinion

18-2521-cr United States v. Rodriguez-Jimenez

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 TO 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 18th day of May, two thousand twenty.

Present: ROBERT A. KATZMANN, Chief Judge, JOSEPH F. BIANCO, Circuit Judge, VICTOR A. BOLDEN, * District Judge. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 18-2521-cr

ALEJANDRO JAVIER RODRIGUEZ-JIMENEZ, AKA ALEJANDRO@DMXTEC.COM, AKA ALEJANDRO@VEGAS1S.COM, ELOY CARDENAS-MORENO, SERGIO URBINA, LEOBARDO TAMEZ, MARCO CORONADO, FILIPPO MAGNI,

Defendants,

* Judge Victor A. Bolden, of the United States District Court for the District of Connecticut, sitting by designation. JESUS RODRIGUEZ-JIMENEZ,

Defendant-Appellant. _____________________________________

For Appellee: Noah Falk, Anna M. Skotko, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

For Defendant-Appellant: Louis V. Fasulo, Esq., Fasulo Braverman & DiMaggio, LLP, Jeffery M. Cohn, Esq., The Law Offices of Jeffery Cohn, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Forrest, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Jesus Rodriguez-Jimenez appeals from a judgment of the United States District Court for

the Southern District of New York (Forrest, J.), sentencing Rodriguez-Jimenez principally to 360

months’ imprisonment after Rodriguez-Jimenez pleaded guilty to conspiracy to commit money

laundering and concealment money laundering in violation of 18 U.S.C. § 1956. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

Rodriguez-Jimenez first argues that his sentence was procedurally and substantively

unreasonable because the district court (1) failed to adequately explain its chosen sentence; (2)

failed to consider all relevant 18 U.S.C. § 3553(a) factors; (3) failed to address his “non-

frivolous” sentencing arguments; (4) placed unreasonable weight on the need for deterrence at

the expense of other mitigating factors; and (5) imposed a sentence greater than necessary to

serve the goals of sentencing. 2 In reviewing these challenges, “our standard is reasonableness, a particularly deferential

form of abuse-of-discretion review that we apply both to the procedures used to arrive at the

sentence (procedural reasonableness) and to the length of the sentence (substantive

reasonableness).” United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012). 1 A district

court commits procedural error where it improperly calculates the Sentencing Guidelines range,

fails to consider the factors enumerated in 18 U.S.C. § 3553(a), rests its sentence on a clearly

erroneous finding of fact, or fails adequately to explain its chosen sentence. United States v.

Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). On a substantive reasonableness challenge,

“we take into account the totality of the circumstances, including the extent of any variance from

the Guidelines range.” United States v. Douglas, 713 F.3d 694, 700 (2d Cir. 2013). “We set aside

a district court’s sentence as substantively unreasonable only if 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.” Id.

Rodriguez-Jimenez’s procedural and substantive challenges to his sentence are very

likely barred by a waiver of the right to appeal “any sentence at or below the Stipulated

Guidelines Sentence of 360 months’ imprisonment” contained in his plea agreement. App’x 24.

We need not address the enforceability of the waiver, however, because we easily reject his

challenges on the merits. The district court’s explanation for its within-Guidelines sentence was

more than adequate. The district court carefully considered the relevant 18 U.S.C. § 3553(a)

factors. It also considered the same mitigating factors that Rodriguez-Jimenez raises on appeal—

including his history and characteristics and his cooperation with the government. It simply

1 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations. 3 determined that these factors were outweighed by aggravating factors, including the magnitude

and extent of the money laundering activity at issue and the need for specific and general

deterrence. Determining the comparative weight of aggravating and mitigating factors “is a

matter firmly committed to the discretion of the sentencing judge, with appellate courts seeking

to ensure only that a factor can bear the weight assigned it under the totality of circumstances in

the case.” Broxmeyer, 699 F.3d at 289. On this record, we have no reason to conclude that

Rodriguez-Jimenez’s sentence was so “shockingly high” as to be substantively unreasonable. Id.

Nor has Rodriguez-Jimenez shown that the district court committed procedural error.

Rodriguez-Jimenez also argues that the government violated his Sixth Amendment right

to counsel when a government attorney “questioned [him] at a debriefing interview without

counsel present.” Appellant’s Br. 22. Rodriguez-Jimenez likely waived this challenge by failing

to raise it below. See United States v. Ming He, 94 F.3d 782, 794 (2d Cir. 1996) (“[W]hen a

defendant is sentenced—unless he specifically alleges that he was denied the assistance of

counsel and asks for a hearing on this subject—the issue is waived.”). In any event, Rodriguez-

Jimenez cannot show he was prejudiced at sentencing by his counsel’s failure to attend the

meeting at issue because he admitted the requisite facts forming the basis of his sentence in his

plea agreement and at his plea hearing.

We have considered Rodriguez-Jimenez’s remaining arguments on appeal and have

found in them no basis for reversal. For the foregoing reasons, the judgment of the district court

is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk